R v Hammond

[2015] NZHC 1030

ANONYMISED TO COMPLY WITH S 203 OF THE CRIMINAL PROCEDURE ACT 2011 WHICH PROHIBITS PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S)

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-009-10956 [2015] NZHC 1030

THE QUEEN

v

STANLEY ROSS HAMMOND

Hearing:	15 May 2015
Appearances:	C J Boshier and C D Newman for Crown A M McCormick and CRD Williams for Defendant
Judgment:	15 May 2015

SENTENCING NOTES OF DUNNINGHAM J

[1]      Stanley Ross Hammond, you appear for sentence today having pleaded guilty to 72 charges involving indecencies on a child, sexual violation by unlawful sexual connection, and  making, possessing and distributing objectionable images.   You were also subsequently convicted on 23 further charges involving unlawful sexual connection, including rape, and indecencies on a child or young person and making and distributing an objectionable publication.

[2]      In summary, the offending includes 23 charges of making an objectionable publication, three of possessing an objectionable publication, 38 of distributing an objectionable publication, 18 charges of indecent acts on a child under the age of

12 years, two charges of indecent acts on a young person aged 12 to 16 years,

10 charges of sexual violation by unlawful sexual connection and a charge of sexual

R v STANLEY ROSS HAMMOND [2015] NZHC 1030 [15 May 2015]

violation by rape.  These 95 charges arose out of offending which occurred between

2003 and 2013 x.

[3]      The lead offences here are the unlawful sexual connection by rape, and the anal intercourse and oral penetration.  The maximum penalty for these offences is

20 years.  The charges involving indecent acts on a child or a young person, they attract maximum penalties of 10 and seven years respectively.

[4]      And the charges of possessing objectionable publications have a maximum sentence, in your case of five years, while of making and distributing objectionable publications, they attract a maximum penalty of 10 years.

A summary of the offending

[5]      Now the Crown prepared a very full summary of facts which runs to some

30 pages but I advised counsel in advance, that I decided not have it read in Court today, both because of its length and to spare the victims having to hear that full account of the offending recounted here.

[6]      However, in order to provide some context for sentencing, I now give a simple overview of your offending.

Background

[7]      x

[8]      x

[9]      Your offending against A began no later than in 2003 when she turned six.  It involved vaginal touching and digital penetration of her vagina including x.   You would also make her touch your penis and at times hold her hand on your penis until you ejaculated.  She recalls x you performing oral sex on her, using your tongue to lick her vagina and she would be too scared to say anything and would just lie there.

[10]     A particular memory she has is that, x, you would undo your fly, and make her touch your penis.  That would only stop when you reached the other end x.  x. She would be made to masturbate you or you would rub your penis against her.  The offending did not stop until she was aged about 12, when she told you she didn’t want those things to happen anymore.  x

[11]     The offending which occurred against B began no later than when she turned seven x.  It included you touching her genitalia, putting your fingers in her vagina and making her touch your genitalia.  The activity progressed to you photographing her in sexually explicit ways, and rewarding her with sweets and other treats to buy her compliance.   x it was on this occasion that I found that an incident of anal intercourse occurred.

[12]     x.  It was here that I found you raped B and also where you took an indecent video of B which was found in the possession of a Canadian man and which was tracked back to you, leading to your ultimate arrest.  Finally, around the time you were living in x, you engaged in further offending including anal intercourse with B.

[13]     When police uplifted your cell-phones they found numerous objectionable photographs and videos on them, and they were able to detect that many thousands of images and videos had also been deleted from various of your phones.   The images included a number of images of unknown children being sexually offended against but there were a number of images and videos of your victim B, including of her genitalia, of her masturbating you and her performing oral sex on you. Disturbingly the associated online chat which was retrieved showed you traded these images with other paedophiles in order to receive similar images from them.  That chat demonstrated your interest in children being used for sexual gratification and your indifference to your victims’ feelings about her photos becoming a trading commodity.

Victim impact statements

[14]     I have read the victim impact statements of B, of x and of x and of her mother x.  I have also heard today the victim impact statement of A.

[15]     They disclose how far and how deep the consequences of your offending have gone. You have not simply robbed your two victims of their childhood, x.

[16]     With B, the overwhelming sense I get is she is still conflicted by the loyalty she feels to you for the good things you did to her x, against the deep sense of betrayal she feels because you took advantage of her desperate need for love.  She feels a deep sense of loss because x.  She is resigned to living with that pain.

[17]     The damage which has been done to B is supported by the victim impact statement of her aunt x.  She speaks frankly and openly about x the battle it has been to x get her to relearn what an appropriate relationship is, whether it is with someone of her own age group or with older males.  She is devastated about what you have done to B and the x.

[18]     A, too, has eloquently explained the consequences your offending has had.  It has affected her relationship with her family.  It has meant she struggled at school and she has turned to alcohol and drugs through her school days.   She has even attempted to take her own life.  She now does not trust men.  She sees them all as potential paedophiles.

[19]     One of the most hurtful things of all is that, when she did pluck up courage to report the abuse,  you  lied and denied that  anything had  happened.   The police therefore did nothing about this, x.  While she has finally been vindicated, that must have been an awful experience to know that you were believed over her x.

[20]     x.

Personal information

[21]     I now turn to what the pre-sentence report and the health assessors’ reports outline about your personal circumstances. You are now 55 years old. You appear to have had an unremarkable childhood.   Although you left school with no formal qualifications, you took an apprenticeship up in automotive painting and clearly did well at that, working your way up to managing a paint and panel business and then eventually buying your own business. You owned and operated that for 20 years and

it was only the impact of the Christchurch earthquakes which meant that business went into voluntarily liquidation.

[22]     You have no obvious history of drug and alcohol abuse, nor of offending.  It appears that your interest in pornography and in particular, sexual offending against children only began around 2003, and coincided when the offending started against the first of your two victims.

[23]     The psychometric testing done on you suggests you combine a high desire to obtain the affection and approval of others in every social context, but you also have a significant ability to engage in duplicitous or illegal behaviour to ensure that your desires are met, irrespective of the harm to others.  You demonstrate a high level of narcissistic or egotistical self-involvement which, as Ms Vertue noted, was consistent with  your  expectation  that  you  were  entitled  to  obtain  sexual  gratification  by sexually abusing the children x.   The personality characteristics you had were considered to present a “barrier to cognitive and behavioural change”.  Disturbingly Ms Vertue noted that you have extremely distorted beliefs about adults having sex with children x. You rationalised your abuse x.

Sentencing goals

[24]     So with that background in mind, I am sentencing you today, I am required to denounce your conduct and to hold you accountable for it.  I am required to impose a sentence that will deter you and others from this offending.  Those sentencing goals can be achieved through the imposition of a very long period of imprisonment.

[25]     However, another goal of sentencing is protection of the community and in this case, young girls from your sexual offending.   As you know, the Crown is seeking a sentence of preventive detention arguing that a finite sentence is unlikely to provide an adequate degree of protection for the community.  Under a sentence of preventive  detention  you  would  be  held  in  custody  until  the  parole  board  was satisfied that you no longer posed a risk to the community.

[26]     So,  one  of  the  key considerations  in  sentencing  you  today is  whether  a lengthy finite term of imprisonment will be sufficient to meet the concerns about the likelihood of you reoffending or whether preventive detention should be imposed.

Appropriate finite term of imprisonment

[27]     So I will deal first with a finite sentence.

[28]     Both  the  Crown  and  your  lawyer  accept  that  the  lead  offences  are  the offences of rape, anal intercourse and unlawful sexual connection involving penetration of your victims’ mouth with your penis.  They are offending of the type which fits into band 4 of the guideline decision by the Court in R v AM.1   And, this band  attracts  sentences  of  between  16  and  20  years’ imprisonment.    It  usually involves “multiple offending over considerable periods of time, rather than single

instances of rape” x.  The Court has said that “offending of this nature, especially involving children and teenagers will attract starting points in the higher end of this band”.

[29]     There are a number of aggravating features of your offending which justify it being in this band.   These include the degree of planning and premeditation to ingratiate yourself to your victims, including by treating them with lollies and ice- creams, giving them money, and also arranging opportunities where you had your victims on their own, so you could take advantage of them, for example, x.

[30]     In terms of other aggravating features of the offending it is clear that your victims were vulnerable, and this was exacerbated by x.  You used that as a ploy to encourage your victims to turn to you and there can be no doubt from the victim impact statements what harm you have caused them.

[31]     Another aggravating feature is the scale of the offending.   In this case, the girls report difficulty in recalling where and when things happened because the abuse was simply so frequent.  As A says, when she was asked to give dates and times of

when the abuse happened she could not because it happened x.  She says of you, that

1      R v AM (CA27/2009) [2010] 2 NZLR 750 (CA).

“every opportunity to do things to me he did”.  It also goes without saying that there

was a huge breach of trust involved x.

[32]     The Crown points to the fact that while the offending against B alone would attract a starting point of between 16 and 18 years’ imprisonment, the offending against x would, on its own, attract a starting point in the vicinity of 12 years’ imprisonment and they argue that an overall starting point for the sexual offending alone should be in the vicinity of 20 years’ imprisonment.

[33]     I accept that there should be some uplift to the starting point to reflect the totality of the sexual offending against both girls, but I am cautious about this as the fact of the offending being x over a period of years is itself a feature which takes the offending into band four.   I propose a starting point for the sexual offending of

18 years’  imprisonment  before  I  consider  what  additional  sentence  should  be imposed for the offending related  to the objectionable images and  whether that should be adjusted for personal mitigating factors.

Objectionable images charges

[34]     So, I turn now to the charges involving objectionable images, and I accept that denunciation and deterrence are particularly important objectives of sentencing you on these charges.   Whether you are making, distributing or possessing such images, you are either perpetrating or encouraging the actual abuse of a child.  You are also part of a market which encourages such abuse to continue.  I also note that while the maximum sentence as you are exposed to on the making and distributing charges is 10 years and the possession charge is five years, those maximum penalties have  recently  been  increased  to  14 and  10  years  respectively.     That  reflects Parliament and society’s abhorrence of such material.

[35]     The impact of this kind of offending is clearly expressed in B victim impact statement.  She said “the part that makes me [the] most sick of all … is that this has always made me feel sick is that my images, my body is always going to be out there for perverts like you, or may be just someone I know clicks on the wrong thing and wham, bam there I am.  You will never understand the fear of this happening, the pain of having to explain why I am all over the internet, because I always will be.”

[36]     I  have  been  provided  with  extensive  and  helpful  submissions  about categorising  offences  of  making,  distributing,  possessing  indecent  images  of children, and they have referred me to the United Kingdom sentencing guidelines which has been adopted by our Court of Appeal in the decision R v Zhu,2 as well as a recent decision in Stewart v Department of Internal Affairs.3    I accept that some of the  images  fall  into  the  category  involving  penetrative  sexual  activity  between

children and adults, but not in the extreme category of involving sadism or bestiality. I also accept that a distinction should be made between the starting point for the possession of objectionable images as opposed to a higher one for the making and distributing.   Making images involving penetrative sexual activity should attract a starting point in the range of four to nine years’ imprisonment.

[37]     I  am  satisfied  that,  looking  at  the  totality,  the  starting  point  for  the objectionable publication offending should be six years to reflect not just their content, but the sheer number of images created over the years, the significant breach of trust in using your x as the subject matter of these images and the harm you have caused her.

[38]     However, it is noteworthy that you have pleaded guilty to almost all the objectionable publication charges except for the two relating to the video of B which was found by Canadian authorities.   That video did not depict the worst of the objectionable publication offending, so I need to determine what discount, if any, I should apply to your guilty plea on the 63 charges you did plead guilty to.

[39]     I am satisfied that only a modest reduction should be made for this, given the strength of the Crown evidence and the fact that these pleas, on their own, did little to achieve the objective of a guilty plea, which is to save judicial resource and avoid the trauma of a trial for the victims.  I am prepared to allow a discount to adjust the starting point on that offending to five years from six which represents a discount of

a little more than a 15 per cent discount.

2      R v Zhu [2007] NZCA 470.

3      Stewart v Department of Internal Affairs [2014] NZHC 2209.

[40]     Looked at cumulatively then, the combined starting point gives a sentence, at this stage, of 23 years.

Mitigating features

[41]     I then must consider whether there are personal mitigating factors of the offending or of you as an offender, which would reduce that.  In that regard, your counsel  draws  my  attention  to  the  fact  that  your  net  equity  in  the  x,  will  be distributed to x. Your lawyers describe this as a gesture of genuine and demonstrable remorse for which credit on sentence is due.

[42]     However, your lawyer goes on to say that you maintain your denial of the charges that you defended at trial, and that sits uneasily with me.  I also note that the various assessments which have been undertaken of you suggest to me that, while you are remorseful, you are still minimising the seriousness of your offending and attributing some responsibility for the offending to the victims and x.  On balance therefore, I am sceptical about whether the gesture of payment is one of genuine and demonstrable remorse.  It is nevertheless though an attempt to give something back to the people you have taken so much from.   In the circumstances, I will allow a modest discount for your gesture of remorse.  I will reduce the 18 year sentence on the sexual offending to 17 years.

Totality

[43]     I have already said that the sentence for the sexual offending should be served cumulatively on the objectionable image offending.   That takes the total sentence to 22 years.   I am required to look at the totality of the sentence and consider whether that is reasonable and I am satisfied it is.   I do not think that sentence is excessive.

[44]     This is also a case where I think that a minimum period of imprisonment under s 86 is warranted.

Preventive detention

[45]     So I now turn to the issue of preventive detention.   I have jurisdiction to consider this because you are aged over 18, you are guilty of a qualifying sexual offence as defined in the relevant section of the Act.  And I am satisfied that you are “likely” to commit another qualifying sexual offence if you are released at the expiry date of any sentence of finite term.

[46]     In considering whether to impose a sentence of preventive detention because of that likelihood of reoffending, I have to consider a number of factors, so I will now look at each of these in turn.

History of serious offending

[47]     The first is whether you have a history of serious offending.  While of course, your current offending is serious, it is acknowledged that prior to this there is no evidence of serious offending, let alone sexual offending.

Seriousness of harm to the community

[48]     In terms of seriousness of harm to the community, as I have already pointed out, the seriousness or the harm done to your victims is extremely high, and that harm has not just been to the two girls involved, but to a much wider circle of people.  I also take into account that your participation in the online trading of child pornography perpetuates a market both here and overseas and that causes harm to the community at large.

Information indicating a tendency to commit serious offences in the future

[49]   In terms of your likelihood to commit serious offences in the future I acknowledge this is a more difficult issue.  I rely to some extent, on the information in the health assessors’ reports.  Ms Vertue concludes there is a medium to high risk that you will engage in relevant sexual offending should you be released into the community without considerable treatment and the demonstration of significant change in your risk factors.   She sees the risk factors particularly x setting where there are vulnerable pre-pubescent females.   Dr Miller also concludes that only a

prolonged intensive treatment programme would reduce your moderate to high risk of reoffending.

The absence of or failure of efforts by the offender to address the causes of the offending

[50]     In respect of whether there is an absence of or failure of efforts by you to address the causes of the offending, it is common ground that because you have not previously been before the Courts for this type of offending, you cannot be said to have either avoided or failed to try and address the causes of your offending.  You have reported to the health assessors a willingness, indeed even an eagerness, to uncover the causes of your offending and accept whatever treatment is offered.

The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society

[51]     The final consideration is the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.  It is obvious from what I have already said that you are already looking at a lengthy sentence with a minimum period of imprisonment.

[52]     Such  a  sentence  will  enable  you  to  attend  a  programme  such  as  the Kia Marama  programme  for  sexual  offenders.     I  also  bear  in  mind  that  the Department of Corrections can apply for an extended supervision order near the time of your release from prison and that conditions can be imposed on you to monitor and reduce your risk upon release.

[53]     I also take into account your age which means that you are likely to be in your late sixties or your seventies when you are released.  That, alone, may mitigate the risk of reoffending.  Furthermore, it seems to me unlikely, at that stage, that you will be in a position to establish yourself in the sort x as was the case in your current offending and where it seems  you are most likely to be at risk of reoffending. Furthermore, you have not demonstrated any history of grooming and abusing younger people beyond those x.

Conclusion on preventive detention

[54]     For  all  those  reasons,  I  do  not  think  this  is  a  case  where  the  risk  of reoffending on release is sufficiently high that I need to order preventive detention.  I am satisfied that a long finite sentence in all the circumstances coupled with a minimum period of imprisonment will adequately protect society.

Sentence

[55]     So, Mr Hammond I will invite you to stand now.

[56]     Mr Hammond you are sentenced to a total of 22 years’ imprisonment with a minimum period of imprisonment of 10 years.

[57]     That  sentence  comprises:    17  years  each  on  the  lead  charges  of  sexual violation by rape (charge 17), and sexual violation by anal intercourse (charges 21,

23 and 25), 10 years each on the balance of the charges involving unlawful sexual connection, five years on each charge of doing an indecent act on a child, and three years on each charge of doing an indecent act on a young person, all to be served concurrently.

[58]     However, cumulatively on that sentence of  17  years,  you are to serve a further five years on the charges of knowingly making an objectionable publication under the Films, Videos and Publications Classification Act 1993.  On the charges of distributing an objectionable publication you are sentenced to two years on each charge and on the charges of possessing an objectionable publication, you are sentenced to one year on each charge, with all those sentences to be served concurrently with the other sentences.

[59]     You may stand down.

Solicitors:

Raymond Donnelly & Co., Christchurch
Brandts-Giesen McCormick, Rangiora