R v Graham
[2021] NZHC 3326
•7 December 2021
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-004-002695
[2021] NZHC 3326
THE QUEEN v
PAGE DAVID GRAHAM
Hearing: 7 December 2021 Counsel:
J C Barry for Crown
N C Wintour for defendant
Judgment:
7 December 2021
Reissued:
8 September 2022
(Identifying information regarding the complainants redacted)
SENTENCING NOTES OF KATZ J
Solicitors: Meredith Connell, Office of the Crown Solicitor, Auckland Counsel: N C Wintour, Barrister, Auckland
R v GRAHAM [2021] NZHC 3326 [7 December 2021]
Introduction
[1] Mr Graham, you have pleaded guilty to a range of sexual offending against two child victims, whom I will refer to as “A” and “B”. In particular, you have pleaded guilty to:
(a)two charges of sexual violation by rape;1
(b)three charges of sexual violation by unlawful sexual connection;2 and
(c)six charges of doing an indecent act on a child.3
[2]Some of these charges are representative.
[3] You appear today for sentence. The maximum penalty available on each charge of sexual violation is 20 years’ imprisonment. The maximum penalty available on each charge of doing an indecent act on a child is 10 years’ imprisonment.
Offending against “A”
Charges 1 and 2 – Indecent act on a child
[4] Between 20 July 2003 and 8 June 2008, you indecently assaulted A on multiple occasions in your bedroom [redacted]. The assaults began when you were 11 or 12 years old. A was five or six years old at this time. The offending included rubbing your erect penis against A’s buttocks, putting her hand down your pants and forcing her to masturbate you; and forcing her to kiss your penis. The first charge of doing an indecent act on a child relates to the period before you turned 14 years old. The second charge relates to the period after you turned 14 years old.
1 Crimes Act 1961, ss 128(1)(a) and 128B. Maximum penalty of 20 years’ imprisonment.
2 Crimes Act 1961, ss 128(1)(b) and 128B. Maximum penalty of 20 years’ imprisonment.
3 Crimes Act 1961, ss 132(3). Maximum penalty of 10 years’ imprisonment.
Charges 3 and 4 – Indecent act on a child
[5] Approximately three times per week between 20 July 2003 and 8 June 2008, you sexually assaulted A in the back of the [redacted] vehicle, when it was being driven at night. You forced A’s hand down your pants to masturbate you.
[6] The third charge of doing an indecent act on a child relates to the period before you turned 14 years old. The fourth charge relates to the period after that.
Sexual violation by rape
[7] On one occasion between 20 July 2003 and 19 July 2005, you made A undress. You then tried to insert your penis into her vagina. This caused A to scream out in pain. At that point you ceased what you were doing.
Victim impact statement
[8] I have read A’s victim impact statement. It makes very powerful and moving reading. She has clearly suffered deeply as a result of your offending. She describes the long-term effect it has had on her. You took away her childhood and her innocence, and betrayed her trust in the worst possible way.
Offending against “B”
[9]You offended against B when she was between eight and 12 years old.
Sexual violation by unlawful sexual connection
[10] On one occasion you went into a bathroom when B was showering. You grabbed B and placed her on top of the bathroom vanity. You then began kissing her and digitally penetrating her vagina.
Sexual violation by unlawful sexual connection
[11] On other occasions between 28 October 2007 and 8 June 2011, when you were looking after B, you would digitally penetrate her. On some of those occasions you were over 18 years of age.
Sexual violation by rape and unlawful sexual connection
[12] Between 28 October 2007 and 8 June 2008 [redacted]. You digitally penetrated B before inserting your penis into her vagina. B screamed out in pain. This deterred you and you stopped what you were doing and removed your penis from her vagina.
Indecent act on a child
[13] Between 28 October 2007 and 8 June 2011, you indecently assaulted B on multiple occasions by touching and fondling her vagina and bottom and grabbing her breasts.
Indecent act on a child
[14] On other occasions between 28 October 2007 and 8 June 2008, B was in your care [redacted]. You would force B to watch pornography with you. Sometimes this occurred in the garage. At other times you would take her into your bedroom. While the pornography was playing, you masturbated in front of B. You would ask B to masturbate you, but she refused. You would then rub up and down against her.
[15] B has not provided a victim impact statement, but I have no doubt that your offending has affected her very deeply. She was a vulnerable child at the time. As with A, she was entitled to trust you to care for her, but you betrayed that trust.
What is the appropriate sentencing starting point?
[16] The first stage in the sentencing process is to set a starting point. I will later adjust that starting point for personal mitigating factors.
[17]The key aggravating features of your offending are as follows:
(a)There were two separate victims. They were each vulnerable due to their age. A was between five and nine years old, and B was between eight and 12 years old, at the time of the offending.
(b)The high degree of violation involved. The offending included both rape and digital penetration.
(c)The significant breaches of trust involved and the fact that the offending occurred within [redacted] a place where the occupants are “entitled to feel, and be, safe”.4
(d)The duration of the offending, which involved repeated abuse over a period of several years.
(e)The harm to the victims. I have already referred to A’s victim impact statement. She described your offending as taking away her childhood and her innocence.
[18] Taking these factors into account, and with reference to broadly comparable cases, it is my view that your offending is at the lower end of band four of the Court of Appeal’s guideline judgment of R v AM.5 The range of starting points for offending in band 4 is 16 to 20 years’ imprisonment. In your case, a starting point of 16 years’ imprisonment is appropriate.
Adjustments to the starting point for personal circumstances
[19] I now turn to consider what adjustments need to be made to the starting point to reflect your personal circumstances.
Guilty plea
[20] You are entitled to a discount for your guilty plea. You were charged in May 2020, but your charges were not formally resolved until April 2021. Initially, your trial was scheduled for September 2021. You pleaded guilty before your trial.
4 Solicitor-General v Hutchison [2018] NZCA 162, [2018] 3 NZLR 420 at [27].
5 R v AM [2010] NZCA 114, [2010] 2 NZLR 750. Although Mr Graham’s offending took place prior to this decision, the Court of Appeal noted at [125] that the “content of th[e] guideline does not differ significantly from what many sentencing judges have been doing in reliance on more recent appellate authority”, and therefore the “new guideline should be applied to all sentencing taking place after 31 March 2010”.
[21] By pleading guilty, you have spared your victims from the trauma of giving evidence. But you did not plead guilty at the earliest possible opportunity. I therefore accept the Crown submission that a discount of 20 per cent is appropriate in the circumstances.
Personal background factors and youth
[22] When sentencing an offender, the Court is required to take into account their personal circumstances, including their personal, family, whānau, community, and cultural background.6 The fact that an offender has been raised in a community surrounded by alcohol abuse and or violence may mitigate their sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.7
[23] It is common ground that you should receive a discount for your personal circumstances, including your youth at the time of the offending. Due to difficulties associated with the current COVID-19 situation your counsel was not able to obtain a cultural report prior to today’s sentencing. Rather than further delay sentencing your counsel instead relies on the detailed information regarding your personal circumstances that is set out in helpful and comprehensive reports that have been written by Mr Jacques, a consultant psychiatrist, and Mr van Rensburg, a clinical psychologist.8
[24] I do not propose to go into detail about the contents of those reports, much of which is very personal. I will, however, briefly refer to some of the key factors that the report writers identify as being significant.
6 Sentencing Act 2002, s 8(i).
7 Poi v R [2020] NZCA 312 at [26] citing Bugmy v R [2013] HCA 37, (2013) 249 CLR 571 at [40].
See also R v Millwood [2012] NSWCCA 2 at [69] where the Court commented that “I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a “normal” or “advantaged” upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.”
8 These reports were prepared under s 88 of the Sentencing Act 2002 to assist the Court in considering whether a sentence of preventive detention is appropriate.
[25] You grew up in an environment where alcohol abuse was normalised, at least in your early years. You received extreme beatings as a form of discipline from a step-parent and often lived in a climate of considerable fear as a result.
[26] You were suspended and expelled from several different schools. You described being a “loner” and acting as the “class clown” to receive attention. One teacher referred you to a medical practitioner, who diagnosed you with ADHD. It appears, however, that you never received any support or treatment for this. You struggled at school and left early without a formal qualification. You were introduced to drugs at a young age and had an unhealthy relationship with both drugs and alcohol.
[27] You were yourself the victim of abuse between the ages of 12 and 14, which coincides with the commencement of your own offending. Mr van Rensburg and Mr Jacques both identify your traumatic experiences as predisposing you to engage in problematic sexual behaviour. Mr Jacques’ view is that stress, emotional difficulties, and isolation associated with your childhood difficulties at the time, together with a high sex drive and easy access to victims, led to your offending.
[28] You were very young at the time your offending commenced – only 11 or 12 years old. Most of your offending occurred when you were between the ages of 12 and 17, although there were also some incidents of offending when you were older than that.
[29] In my view a global discount of 50 per cent is appropriate to recognise both your youth and your reduced culpability due to the linkage between your troubled background and your offending.
Conclusion on discounts
[30] Applying the 20 per cent discount for your guilty plea, and the 50 per cent discount for personal circumstances and youth to the starting point would result in an end sentence of four years and 10 months’ imprisonment.
Adjustment for totality
[31] The somewhat unusual feature of your case is that you have previously been convicted of a significant number of sexual offences that were committed after the offending that is now before the Court. You sexually offended against a former partner between 2011 and 2013, in respect of which you were sentenced to six years’ imprisonment.9 On 21 April 2015, you were sentenced for sexual offending against a former partner’s sister between 2010 and 2011. The Judge sentenced you to nine months’ imprisonment, imposed cumulatively upon the previous sentence that had been imposed.10 This means you have effectively served a sentence of six years and nine months’ imprisonment for your previous sexual offending.
[32] The offending that is currently before the Court took place between 20 July 2003 and 8 June 2011. The end of that period overlaps with some of the offending in respect of which you have already been sentenced and already served a term of imprisonment.
[33] Where an offender has committed multiple offences over a period of time, been sentenced and served a sentence of imprisonment for a portion of the offending, and has later been charged with the remainder of the offending, the sentence for the second, or in this case the third set of offending will often need to be adjusted for totality.11 In this case the Crown accepts that there needs to be some adjustment to your end sentence to take into account totality. The totality principle mandates that the imposition of cumulative sentences must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.12
[34] Taking into account totality, it is my view that an appropriate end sentence for your offending is three years and nine months’ imprisonment. The overall effect is
9 R v Graham DC Auckland CRI-2013-090-3521, 10 September 2014.
10 R v Graham [2015] NZDC 6946.
11 See for example Wilson v R [2019] NZCA 584 where Mr Wilson was convicted in 1996 on 23 charges of sexual and violent offending against women in the 1970s, 1980s and 1990s. He was sentenced to 21 years’ imprisonment. In 2018, Mr Wilson was found guilty by a jury of a further 11 charges of sexual and violent offending against two other women, and a nine year old girl, in the 1970s. The Court of Appeal held that it was appropriate for Mr Wilson’s sentence on the second set of charges to be adjusted for totality, factoring in the first sentence (as if he had been sentenced for all of the charges in 1996).
12 Sentencing Act 2002, s 85(2).
that the cumulative total of all of your relevant sentences will be 10 years and six months imprisonment.
Should a minimum period of imprisonment be imposed?
[35] I now turn to consider whether I should impose a minimum period of imprisonment. Mr Barry for the Crown submits that I should impose a minimum period of imprisonment of two-thirds upon you. Your counsel agreed that a lengthy minimum period of imprisonment would best serve your rehabilitative needs.
[36] Minimum periods of imprisonment may be imposed where the court is satisfied that the ordinary minimum period of imprisonment of one-third of the length of the sentence would not be sufficient to hold the offender accountable, denounce the offending, deter the offender or others, or protect the community.13
[37] Your offending was egregious. It demands a lengthy term of imprisonment to meet the principles of accountability and denunciation. But crucially, you have not yet had the opportunity to undertake rehabilitative treatment. Mr van Rensburg considered that you were at an above-average risk of sexual reoffending. Mr Jacques’ view was that you were at a high risk of reoffending without rehabilitative treatment. On a positive note, however, you have shown insight into the risk that you pose and you told your pre-sentence report writer that you felt you needed to complete the recommended treatment to ensure that you were safe in the community. You have also spoken to me in court this morning and reaffirmed your commitment to rehabilitation. This commitment is to your credit. In my view imposing a minimum period of imprisonment will enhance your prospects of rehabilitation by ensuring that you have sufficient time in custody to undertake and complete appropriate sex offender rehabilitation programmes. In this respect I have particular regard to the fact that you have already been on remand for eight months during which time you will have not had access to sex offender rehabilitation programmes.
[38] I therefore consider that a minimum period of imprisonment of 50 per cent is appropriate. That is a period of one year and 11 months’ imprisonment.
13 Section 86.
Should preventive detention be imposed?
[39] I now need to consider whether a sentence of preventive detention is appropriate. Mr Barry noted this case was transferred from the District Court to this Court to enable consideration of a possible sentence of preventive detention.14 Two health assessor reports (from the psychologist and the psychiatrist) were prepared to assist the Court to make that decision.15
[40] Having reviewed that information, Mr Barry advises that the Crown does not seek a sentence of preventive detention. You were very young at the time of the offending. Indeed only two of the charges relate to offending at a time when you were of an age when you would have been eligible for a sentence of preventive detention. You are still a young man. Regrettably, you have not been provided with an opportunity for rehabilitative treatment, but you have nevertheless shown insight into your offending and there is real hope for your rehabilitation. A finite sentence rather than preventive detention is therefore appropriate.
Three strikes warning
[41] Mr Graham, there is one further matter I must address and that is to give you a warning under the three strikes regime. It will be a first strike warning, despite the fact that you have already received two first strike warnings. The reason for that is that a second strike warning can only be imposed when a person offends again, having already received a first strike warning. That does not apply here as your offending occurred before you were given a first strike warning. I am, however, required to give you a further first strike warning which I will now deliver. Given your convictions for sexual violation by unlawful sexual connection and indecent act on a child (which are charges 7 and 10 in the Crown Charge Notice) you are now subject to the three strikes law. I am now going to give you a warning of the consequences of another
14 Section 87(3) provides that the High Court may, on application of the prosecutor or on its own motion, impose a sentence of preventive detention on the offender.
15 Section 88(1)(b) prevents the Court from imposing a sentence of preventive detention unless it has considered reports from at least two appropriate health assessors about the likelihood of the offender committing a further qualifying sexual or violent offence.
serious violence conviction. You will also be given a written notice outlining these consequences which list the serious violence offences.
(i)If you are convicted of any serious violent offences other than murder committed after this warning and if a judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.
(ii)If you are convicted of murder committed after this warning then you must be sentence to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the judge must sentence you to a minimum term of imprisonment.
Sentence
[42] Mr Graham, please stand. On each of the two charges of sexual violation by rape, three charges of sexual violation by unlawful sexual connection, and six charges of doing an indecent act on a child, you are sentenced to three years and nine months’ imprisonment, with a minimum period of imprisonment of one year and eleven months’ imprisonment. Those sentences are to be served concurrently.
[43]You may stand down.
Katz J
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