R v D HC Wellington CRI 2005 085 5692

[2006] NZHC 851

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2005 085 5692

THE QUEEN

v

D

Counsel:        B M Stanaway for the Crown

G J King for the Prisoner

Date:              21 July 2006

SENTENCE OF WILD J

[1]      Mr D  , you appear for sentence having been convicted of one charge of indecently assaulting a female complainant  in Rotorua  in 1980.   The  maximum penalty for that offence is 7 years imprisonment.

[2]      Had  you  been convicted  in or  around  1980,  you  could  have  expected  a sentence of around 18 months-2 years imprisonment.

[3]      Had you committed this particular crime currently, and had it been charged, as  it  could  have  been,  as  sexual  violation  by  unlawful  sexual  connection,  the sentence of imprisonment could have been substantially more.

[4]      At  your  trial  you  faced  five  charges,  three  of  offending  against  one complainant, the other two against a second complainant.

R V D HC WN CRI 2005 085 5692  21 July 2006

[5]      All charges arose from incidents in or around 1980 when both complainants were school girls aged between 14 and 16, and you were a 29-30 year old police constable working in the Youth Aid section of the Rotorua Police.

[6]      Each complainant was a babysitter for your children.

[7]      The charges against the first complainant comprised two of indecent assault and one of rape.   It is on the first of those three charges that the jury found you guilty.

[8]      You and your wife were friends of the complainant’s parents, the two famlies often socialising together.  You went with the complainant’s father to the Polynesian Pools in Rotorua, each man taking his children.   It was a family outing for two fathers and two sets of children.  When all of you were in the public pool you came up beside the complainant, put your hand between her legs and in under her bathing togs and put  a finger  into  her vagina.   Although this was a novel and startling experience for the complainant, and occurred of course under water, the complainant said in evidence she was pretty sure you violated her in that way.

[9]      When this incident occurred the complainant’s father was just a few metres away in the pool.  You had just been talking to him.  The complainant was struck dumb by the shock and audacity of what you did.  She said nothing at the time and never really said anything – certainly never made any formal complaint – until the Police spoke to her in late 2004, about 24 years later.

[10]     As is now well known, the Police spoke to the complainant as part of the much publicised Operation Austin into the conduct of police officers, in particular toward women, in Rotorua in the 1980s.

[11]     The media should not misrepresent  your case.  Although you were a police officer at the time, your offending occurred in a private capacity, in your private life, against young women you and your wife had engaged to babysit your children.  Save that the two complainants saw you visiting their school in the course of your Youth Aid work, the offending had nothing to do with your police work.

[12]     Mr D  , I did a moment ago refer to young women.  Plural.

[13]     I discharged you on two counts against the second complainant, so the jury was not required to return verdicts on the two charges involving her.   I did that because it became clear in the course of your trial that your counsel was able to call evidence that the second complainant was 16 years old when the first of the two incidents concerning her occurred.  As she had something of a schoolgirl “crush” on you at the time, and consented to what you did, no crime was involved.

[14]     As with the offending against the first complainant, you utterly denied and continue to deny the charges.   In fact, you denied any knowledge of the second complainant.

[15]     Having heard, as the trial Judge, the second complainant’s evidence, which she gave with disarming directness and candour, I am sure you did to her the things she alleged.

[16]     As to the credibility and reliability of what she said in her evidence, I hope that it has not escaped you that it was a recollection she herself had that enabled your counsel to  gain your discharge on the two  counts involving her.   That was her recollection that the first incident in time occurred when she was babysitting your children while you and your wife were attending a weekend 10 year reunion of your graduation from the Police College.  With that information, you were able, through your counsel, to tell the Court you had available evidence dating that reunion to a particular weekend, one month after the second complainant turned 16.   So, while you have relied on that part of her evidence to your advantage in that way, and justifiably so, on the other hand you reject her allegations.

[17]     I say again Mr D   that I am sure you did to the second complainant the things she gave evidence about.

[18]     I am equally sure that you indecently assaulted the first complainant in the

Polynesian Pools in just the way she described in her evidence.

[19]     As  you  maintain  a  complete  denial  of  any  misconduct,  you  cannot, consistently, be genuinely remorseful and apologetic for what you did.  And you are not.  I will come back to that.

[20]     Mr D  , your marriage ended in divorce in 1984.  It may be relevant to mention that you and your wife, as I understand it, have remained on good terms. She gave evidence for the Crown in your trial, although not really evidence against you, and I was impressed by her as a witness.

[21]     Five  years  later  in 1989  you  left  the  Police,  having  completed  20  years service.

[22]     Shortly after that you moved to Australia where you have lived ever since. You have been in a new (not really new any more) relationship there for the past 13 years.

[23]     As  your  counsel  has  stressed  this  morning,  you  were  extradited  from

Australia to New Zealand in December 2005 to stand trial.

[24]     Your  counsel  has  provided  me  with  some  10  or  11  references  and testimonials from people all of whom speak highly of you as a person:  of your hard work; your integrity; your morality; your loyalty; your support for others; and your friendship.

[25]     Of course Mr King is not likely to have provided me references unfavourable to you.  But I am impressed by what I have read.  The referees include senior police officers under whom you served, a person with whom you worked in schools in Rotorua in your work as a Youth Aid officer, and a number of people with whom or for whom you have worked since moving to Australia.  There is a very supportive testimonial from your present partner who has remained in Australia, working.

[26]     At  55 years of age you appear  for the first  time  in a criminal court.   I

anticipate it will be your last time also.

[27]     Those of you in Court today listening to this might be asking yourself:  what sentence is this Judge going to impose on this man?

[28]     And, indeed, Mr D   sentencing you this morning is one of the more perplexing sentencing tasks I have had.

[29]     I think five points determine the appropriate sentences for you.  These points are not distinct ones – they overlap.

[30]     First, these incidents, and in particular the offence for which I am sentencing you, occurred 25-26 years ago.   Some people consider that should not make any difference:  the crime remains as serious today as it ever was.  Whilst I respect that viewpoint, I do not quite share it.  For one thing, the quarter of a century that has elapsed in the interim has provided you with an opportunity to demonstrate whether this was but one incident in a life of crime, or an aberration in an otherwise decent hardworking life.  You have demonstrated that it was the latter, and in a convincing way, through the references and other material provided to me.

[31]     Second, and following from this, I can see no point in sending you to prison. Yes, prisons exist to punish people and to deter them, and others, from crime.  But their most legitimate purpose is surely to lock away people from whom society needs protection.  You are not such a person.  I do not consider that imprisonment is the appropriate sentence for you.

[32]     Third, there is the position of the complainant.  She is in Court this morning with her husband.   I have asked that you read what she has written in her victim impact statement so that you will understand first hand the toll this offending has taken on her over the past 25-26 years.   Victim impact statements are intensely personal and the complainant has indicated that she does not wish to read hers in Court this morning.  But I hope she will allow me to quote these things from what she has written.  One of them is the same passage Mr Stanaway mentioned:

I would like for Peter to know that what he did to me has affected my life and it was unacceptable as both a policeman and a friend to do this to anyone let alone a naïve 14 year old girl.

I can only hope that justice will take it’s course and that he will understand that not only I, but society in general, finds his actions abhorrent and unacceptable too.

…

Having for so long tried to repress and put to the back of my mind what happened to me, there would be times over the years when the emotion was too great and would be reflected in me becoming angry and resentful.  I have had to try hard over the years to not let my feelings get the better of me.

Having to even think about it and talk about it again has brought back much of the anger and resentment I felt then, and emotionally I feel I have been riding a roller coaster.   I am hopeful that after this I will be able to move forward with my life once more.

For the last two years as this police and judicial process has slowly unfolded my life feels as if it has been on hold.

[33]     In  those  passages  she  expresses  her  inability thus  far  to  put  this  matter entirely behind her, but her hope that after today she will be able to do that and move on with her life.

[34]     How can I assist in achieving that for her?  My task would be much easier if there was from you Mr D   an acceptance that you did this to her, an acknowledgment that it  was completely unacceptable and wrong,  and a genuine apology from you to her.  Given that you completely deny this offence she does not and of course cannot have that from you.

[35]     Instead, I intend ordering you to make amends to her in the only way in which the Court can, which is in money terms.

[36]     I should add that that is going to hurt you substantially because I accept on the material available to me that you are now in a bad financial situation.

[37]     Fourth, there is the wider community.   This was offending also against the Rotorua community of the 1980s.  It was offending against one young woman and misconduct, in my view, against a second young woman, growing up in that community and trusting you and other adults.  Particularly, in the case of the young woman in Court this morning, because you were both a close family friend and a policeman  working  with  young  people.    So  I  intend  ordering  you  to  do  some

community work as a means of requiring you to make amends, small though they may be, to a society you wronged, albeit quarter of a century ago.

[38]     There will inevitably be some people who will say that those two sentences – reparation and community work – are inadequate.  These are people who know better than do Judges what sentence is appropriate in any particular case.  They have the advantage  that  they  do  not  have  the  detailed  information  about  the  crime,  the criminal and the victim, which the Judge has.  They are entitled to their viewpoint and a democratic society benefits from its expression.

[39]     But those people in particular should not overlook – no-one should overlook - the other ‘punishments’ – if I may call them that – that have effectively befallen you.

[40]     You have lost your job.  As your partner was working with you, she lost her job also.   You have lost  roughly a  year’s earnings.    As a  result  your  financial circumstances are now precarious.   I need not go into the detail.   You have been extradited from what  is now your homeland to face these charges here  in New Zealand.

[41]     Despite name suppression until the jury gave its verdicts, you have had a very public trial and, as can be seen, the media are in Court today to ensure that the public are again aware of this last round of your encounter with the criminal law.   All of those things are in themselves substantial penalties.  As your partner describes it in her letter to the Court:

My world has come tumbling down.

Above all, from your viewpoint, you will now always have a large black cross on an otherwise unblemished record.

[42]     Mr D  , I impose the following sentences on you:

a)        You are to make reparation to your victim in the sum of $10,000.

Payment in full is to be made to the Registrar of this Court no later than the 31st of this month.

b)       You are to complete 100 hours of community work.

[43]     When you have completed those two sentences you will be free to return to Australia, and to try and reassemble your life there.  And I very much hope that your victim, who as I have said is in Court this morning with her husband, will also now be able to move forward with her life and finally put this matter behind her.

Solicitors:

Crown Solicitor, Christchurch for the Crown