R v Hulks HC Auckland CRI 2009-090-9262

[2010] NZHC 1572

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-090-009262

THE QUEEN

v

GRAHAM MARTIN HULKS

Hearing:         10 September 2010

Appearances: K A Lummis for Crown

P T R Heaslip & V L Pomeroy for Prisoner

Judgment:      10 September 2010

SENTENCE OF KEANE J

Solicitors

Crown Solicitor, Auckland

R V HULKS HC AK CRI 2009-090-009262  10 September 2010

[1]      Graham Hulks, you appear for sentence for five indecencies with boys aged between 12 - 16 years, three instances of sexual conduct with a young person under

16 and ten offences of possession of objectionable publications. These offences lie within a seven and a half year span between the end of 2001 and the middle of 2009. You pleaded to them on arraignment.

[2]      Throughout those years you lived at a West Auckland suburban address. Your first victim, A, lived next door. He was a regular visitor at your home. He came to play video games. His family also borrowed your house phone to make calls. He brought to your home his relatives and school friends. You allowed them all to play video games or use the computer to surf the internet.

[3]      You encouraged A to look at pornography and play movies. You took photographs of him. When he was aged between 12 - 15 years, you committed the two offences against him for which you are for sentence. The first is a representative offence. Between 18 March 2002 - 17 March 2006, you indecently assaulted him, by masturbating him. The second is a specific offence. Between 18 March 2005 - 17

March 2006 you indecently assaulting him by sucking his penis and testicles. That second offence, the Crown summary says, appears to have happened at his request.

[4]      Your second victim, B, a cousin of A, visited your home when he was aged

12 - 14 years. You offended against him also. As a result you are for sentence for two  offences.  The  first  is  a  representative  offence,  indecencies  between  18

November 2001 - 17 November 2004, massaging his body or masturbating him. The second is a specific offence. An indecent assault between 18 November 2002 - 17

November 2003, when you placed your mouth over his penis.

[5]      Your third victim, C, visited you occasionally, when he was aged between 12

- 16 years. You encouraged him to look at pornography. You touched his penis. You are for sentence for a representative indecent assault between 20 November 2002 -

19 May 2005.

[6]      Your fourth victim, D, another cousin of A, was 13, when he began to visit you  with  A  and  others  to  play  video  games  and,  as  it  turned  out,  look  at

pornographic material. You gave him money, lollies and food, for indecencies. You normally took the initiative. Anticipating money on three occasions, or four, he did. You are for sentence for two representative offences; both indecent acts, between February 2006 - July 2009, inducing him to masturbate you and you masturbating him.

[7]      Your fifth victim, E, met you when he was nine. You began to offend against him when he visited you, when he was aged 13 - 14 years.

[8]      To  arouse  him  you  gave  him  pornographic  magazines  and  videos  and encouraged him to look at pornographic images. You gave him alcohol, money and allowed him to use your car. You fondled his genitals through his clothing. You tried to entice him to perform indecent acts. You offered to massage him and encouraged him to masturbate. You allowed him to walk around your house naked masturbating.

[9]      As  to  E,  you  face  only a  single  representative  offence;  an  indecent  act, between 18 April 2007 - 17 April 2009, when he was under 16 years.  Though the offence is representative, and the only particular given is that you grabbed his crotch, the wider context is not in dispute.

[10]     The ten offences of possession of objectionable material all came to light on

2 July 2009 when your home was searched. The police seized your computer hard drive and two flash disks. For the purpose of sentence the Crown is prepared to accept that 500 images were in issue, though it appears that there were considerably more. Those pertinent for sentence were images depicting young boys aged between five - 18 years performing various sexual acts mostly in pairs.

Victim impact statements

[11]     I have victim impact statements from three of your five victims. As your counsel says, only one of them is signed by a victim and that is victim D. Those from victims A and B are not signed by them. Your counsel, therefore, invites me to treat with some reserve everything that they say in those statements. He accepts that in a

broad sense they may express generally the impact on those victims of your offending.

[12]     Your principal victim, A, is now aged 20. He is living away from Auckland. He says, and your counsel disputes, that as a result of what came to light he and his partner are experiencing difficulty. He says he was reluctant to speak to the police. He did not want his friends and relatives to know. He describes his experience of your  offending.  You  took  the  initiative,  he  says,  when  he  was  young.  He  was shocked. He went along with what you wanted. He took money from you because he always felt pressured. He was young and did not have much money. He is glad that it is all over.

[13]     Victim B, now 21, who met you through his cousin A, also says that you took the initiative and induced indecencies with lollies and money. He was then young. The offending happened, as he recalls, when he was 13. He too was considerably affected at the time by what you were doing. He did not know what to do or how to react. He finds the whole experience now extremely embarrassing and difficult to resolve. He does not want anybody to know about it.

[14]     Victim D is now 16. He too does not want anybody to know what you did to him. He disliked being with you, he says. But, as he then frankly says, money was everything. He was only 13. He too wants all of this behind him.

[15]     Your other victims did not want to make victim impact statements. I gather, because they felt that to do so would be to re-open experiences that have left them, as they certainly have left the victims from whom I do have statements, with a lasting sense of shame. A secret they hope never taints their relationships with their families and loved ones.

Psychological assessment

[16]     For the purpose of sentence I have a psychological assessment dated  20

August 2010, a pre-sentence report dated 1 September 2010 and a supplementary report dated 8 September 2010. I begin with the psychological assessment.

[17]     You are, the psychologist says, aged 46. You suffered in your early teens a brain  lesion  that  may  have  been  congenital.  When  young  you  suffered  poor co-ordination, twitching and disturbances in expression and recall, as well as wider difficulties. All or most of these resolved by the time you became an adult. You suffered then, however, a head injury in a car accident in your twenties.

[18]     It was during your rehabilitation, you told the psychologist, that you found yourself sexually interested in adolescent boys. You were referred for psychological counselling but did not persist in it.

[19]     You had suffered sexual abuse once at school, you told the psychologist. You were then aged 12. When  you and  a boy of your age were in the toilet block

'experimenting' and a teacher joined you and masturbated you both. But that apart, your more general and pervasive experience at school was that you had difficulty establishing relationships, that  you were ostracised, teased and bullied, that  you became isolated. And that became, in the sense of isolation anyway, very much a reality in your adult life.

[20]     After leaving school, the psychologist says, you obtained, after undergoing a technical apprenticeship,  a tertiary qualification  that enabled  you to work as an electronic engineer but, by your late twenties, your employment history had become more unstable. Most recently you have worked as a security guard.

[21]     You remain isolated, the psychologist says. Your relationships with adults, both generally and sexually, have been intermittent and unsuccessful. Your focus since puberty has been increasingly fixed on boys aged between 12 - 16 years. You were frank to him, he says, as to the degree to which you find young boys arousing and on your increasing resort to pornographic images on the internet.

[22]     In one sense, the psychologist says, you were frank about the extent to which you interacted with your victims. You also acknowledged that the images that they saw were designed to arouse. But while you did that, he says, you denied grooming them, hiring movies, buying food or play station games, or showing them pornography to arouse them. Rather, you said they asked you if they could watch

pornography. They initiated sexual acts and they enjoyed them. You maintained that they had lied, concerned about their own sexual identity. Two especially, you said, offered you sex for money.

[23]     You  went  to  the  police  yourself,  the  psychologist  says,  after  victim  A's girlfriend discovered a sexualised photograph of him and threatened to go to the police herself. Your  counsel says that in this the psychologist is incorrect. The photograph was not of A. It was just a sexualised photograph. But, as I understand it, A's girlfriend did go to the police.

[24]     Further, the psychologist says, you were under pressure from your victims. They were blackmailing you for increasing amounts of money. Your home had been burgled five times. You had seen two of your victims stealing from your home. When things got out of hand, the psychologist says, you told a work colleague. You hoped he would help you to enter a SAFE program. He prepared a summary you later considered contained inaccuracies. You felt betrayed when he also, it seems, went to the police. You described to the psychologist the offences with which you are charged as exaggerating out of all proportion the seriousness of your offending.

[25]     Though, therefore, you admitted your offences as set out in the summary for sentence, the psychologist says,  you minimised your responsibility, seeing these sexual relations as not abusive but consensual and as initiated by your victims. You expressed, he found, little remorse, except as to the impact on you yourself. You showed no empathy for your victims, he said. Nor could you foresee any negative impact for them.

[26]     You will, the psychologist said, participate in a rehabilitative program if obliged. He questions whether you would do so voluntarily. However, he considers, what is most critical is that you do participate. He believes that you might well do so, if clearly directed, despite the fact, as he considers, you minimise your offending.

[27]     The psychologist assessed the risk you present for the future using Static 99, that relies on ten static factors, and Stable 2007, which assesses dynamic factors. Both, he said, suggest that you are highly likely to reoffend in just the ways for

which you are for sentence today. Your victims are likely to be, as they have been, boys known to you or unknown to you, vulnerable boys whose trust you had gained through friendship and support.

[28]     For  that  reason,  the  psychologist  recommends  that  whatever  form  your sentence takes, you undergo intensive rehabilitative treatment. He canvasses in his report  the  forms  available  within  the  community and  within  a  prison  sentence. Unless you undergo a program of one form or another, he says, the risk that you present will remain predictably high.

Pre-sentence report

[29]     Your pre-sentence report, as well as setting out more briefly your personal history, sets out reservations that you entered to the statement of facts on the basis on which you entered your plea. I am told by your counsel that the statement of facts today is one that you accept and that I need not be concerned about the reservations set out in the pre-sentence report.

[30]     Like the psychologist, the probation officer who assessed you describes you as having very limited insight into the impact of your offending on your victims. You minimised your offending, she says, and you shifted blame to your victims, whom  you  regarded  as  involved in entirely consensual relations with  you.  You showed no remorse, certainly as to victim A. You did feel some regret as to your other victims. To that extent this report differs from the psychological assessment.

[31]     You explained to the probation officer, just as you did to the psychologist, the context in which you went to the police; and she found you motivated to attend a SAFE program, certainly, if you were subject to a community sentence.

[32]     In her initial report the officer questioned whether you would, if sentenced to imprisonment, be eligible to enter the Te Piriti program. Your risk rating, according to Departmental measures in contrast to those used by the psychologist, was low. For these reasons, therefore, she recommended a community based sentence, home detention, coupled with a SAFE program.

[33]     There was then only one address available to you, as is still the case, your parents'  address,  and  the officer  considered  that  unsuitable.  It  was  too  close to schools and a reserve. She recommended, therefore, an adjournment to look for a better address. In her supplementary report, however, she makes a modified recommendation.

[34]     The officer now accepts that the risk you present may be high and that you would be eligible to enter the Te Piriti program, if imprisonment in excess of two years, three months were imposed. She does say that, if you remain eligible for a sentence within the community, your parents, who are at home most of the time, would monitor you at times of greatest risk. They would actively support you undertaking a SAFE program.

[35]     In the result, the officer recommended a series of conditions designed to obtain for you appropriate therapy, depending on which form of sentence was imposed. It is against the background of those reports and your offending that I must sentence you.

Sentencing purposes and principles

[36]     I must hold you accountable for your offences and impose on you a sentence which denounces and deters. I must also, so far as it can be achieved, impose a sentence on you that encourages you not to offend again and enables you to re-enter the community. In the sentence that I impose, I must take account of the factors that aggravate your offending and mitigate it, and impose, so far as it is possible, a sentence consistent with those imposed in analogous cases.

[37]     The  Crown  contends  that  your   lead  offences  for  sentence,  the  indecent assault offences, warrant a starting point of four years imprisonment. In this the Crown relies on six aggravating factors and also the fact that a concurrent sentence is to be imposed for the objectionable publication offences.

[38]     For  your  lead  offences,  the  indecent  assaults,  your  counsel  contends  by contrast, the starting point for sentence ought to be three years imprisonment at the most and subject only to a small uplift for the objectionable image offences.

[39]     There is, as counsel accept, no tariff for indecent assault. The seriousness of indecent assaults varies widely from case to case. However, it is a well established principle that imprisonment will usually be the only right sentence for sexual offending against children.[1]

[1] R v S CA465/05, 11 April 2006. 

[40]     Of the cases to which counsel have referred me, one thing emerges plainly and that is that circumstances do differ and comparisons can be unhelpful. To illustrate that I refer to two cases, each involving offending with some analogy to yours but with material distinctions.

[41]     The Crown relies on R v Turner,[2]  where there was offending against five boys, 11 offences over three and a half years. The starting point, dictated by the fact that two of the counts were sexual violation counts for oral sexual connection, was eight years.  The Court of Appeal endorsed that starting point. It also considered a three and a half year sentence for indecent assault not to be excessive.

[2] R v Turner CA 113/04, 4 October 2004.

[42]     Your counsel referred to R v Moloney,[3] where a four year starting point was taken for offending over six years by a person in a high position of trust with special needs children. You are not in that position of trust but that offending was historical and that was a special consideration which does not figure in your case.

Crown submissions

[3] R v Moloney HC CHC CRI 2003-009-013598, 1 August 2008.

[43]     The first feature that aggravates your offending, the Crown says, is that your indecencies were towards the more serious end of the spectrum. Most involved skin to skin contact and the most serious oral connection. Aggravating also were the

objectionable material offences involving images that you used, the Crown says, in an attempt to arouse your victims.

[44]     Secondly,  the  Crown  says,  as  the  victim  impact  statements  graphically outline, your victims suffered embarrassment, vulnerability, confusion, anger and frustration. The two victims who did not want to make statements were as afflicted as those who did make statements. All want to put your offending behind them.

[45]     Thirdly, the Crown says, in offending first against victim A but then more generally, you abused a position of trust. You were a trusted neighbour of the parents of victim A. You allowed them to use your telephone. They allowed their son to come to your place freely. They trusted you. You were able to exploit the level of trust they placed in you and the trust placed in you by your victims.

[46]     Fourthly, the Crown says, your victims were at a vulnerable age. They were

12 - 15 years of age. You were, by contrast, 37 - 45 years. You were well placed to understand that they came from disadvantaged backgrounds. You would have been aware that they would have been attracted to offers of games, money, alcohol and food.

[47]     Fifthly, you acted, the Crown says, with premeditation and you groomed the boys. You encouraged them to spend time at your property. You provided computer games and pornography. You normalised the behaviour you were inviting them to take part in.

[48]     Sixthly, the Crown says, this offending happened over seven and a half years, between late 2001 - mid 2009. You persistently abused your five victims, and that there were five is aggravating in itself. You abused victim A regularly over four years, victim B sporadically over three, victim C in a more limited way when he was between 12 - 14 years, victim D a number of times over two and a half years and victim E occasionally over two.

[49]     The Crown contends that there are no mitigating factors for this offending but does accept that, though you pleaded on arraignment, your offending in its totality

came to light when you spoke to the police. You then described offending of which the police were unaware. You accepted responsibility from the earliest opportunity and you are entitled to a corresponding discount.

[50]     The Crown does not accept that you are entitled to any other discount, in particular any for  your lack of previous convictions. The Crown says that your offending over seven and a half years was pre-figured by earlier conduct which, on the state of the law as it was, did not constitute criminal conduct. It was nevertheless sexual misconduct in which you exploited somebody much younger than you.

Defence submissions

[51]     Responding to the first aggravating feature relied on by the Crown, your counsel says you accept that your offences involved skin to skin contact and oral connection, but none, he submits, was forced. There was no violence. None was a precursor to a more serious offence. Nor were the images, he submits, in the most aggravated category.

[52]     Secondly,   he   submits,   the   victim  impact   statements   may  have  been predictable but those by the two, who did not sign their statements, are not to be taken completely literally. That apart, he said, you are genuinely remorseful to the extent that you can be. The problems that caused you to offend also meant that you did not understand fully the impact of your offending. You will only do so after you have undergone therapy.

[53]     Thirdly, your counsel submits, you accept that you were in the position of a trusted neighbour but your breach of trust was not of the order of a parent or teacher or another person acting in the role of a parent.

[54]     Fourthly, you accept, your counsel says, that your victims were vulnerable because of their age. You were aware that they were disadvantaged and would be attracted to the offers you made. You accept the age disparity. But, he points out, these offences arose out of relationships springing from your personal difficulties for which you need help and in going to the police you did seek help.

[55]     Fifthly,  your  counsel  accepts,  your  offending  may  well  have  involved grooming. But, he says, you were not so objectively in charge that you were fully deliberate.

[56]     Sixthly, your counsel says, your offending may have been lengthy. There may have been five victims. But they visited you. They exacted revenge by burgling your house, by demanding money, and one took your car. That, your counsel says, is not to minimise your offending. But a dynamic developed in which they were not passive or under your control.

Conclusions

[57]     In sentencing you I accept that your personality and history may leave you with a limited insight into  your offending and  its effect, and that  you do need therapy. However, you are accountable for your offending. It was offending over seven and a half years and it was, if not the most utterly cynical offending there can be, certainly very deliberate and calculated.

[58]     The impact on your victims was real. The Crown makes the point, and I think rightly, that your victims, who are still young, may yet have to come to terms with the impact. That may emerge much later in their lives. Right now they just want to put this behind them. One can only hope that will be possible. It may well not be.

[59]     Your principal offending was, I consider, so serious as to lie beyond any community based sentence. More especially is that so given that your psychological assessment shows that the risk you present to the community is presently so entrenched that it will only be answered by intensive therapy, as I consider, in an institutional context.

[60]     A  further  consideration  is  that  the  only  address  open  to  you  in  the community, your parents' address, carries distinct risks; and though your parents, who are here today, are willing to assume responsibility for you, that would be far too much to impose on them. However, as I say, such a sentence is simply not appropriate.

[61]     Your lead offences, I consider, were such (and in this I take account of the aggravating features identified by the Crown subject to the qualifications you enter) that a four year starting point is appropriate, more particularly as I will imposing a concurrent sentence for the objectionable publications offences.

[62]     From that you are entitled to a 33 percent discount for your plea. That means that the sentence for those offences would be of the order of two years, eight months. Taking  some  account,  however,  of  your  vulnerability  and  the  difficulties  your counsel has pointed to and the absence of any other convictions, though strictly that last factor is irrelevant, I will reduce that to two years, six months.

[63]     You will be sentenced for the indecent assaults to two years, six months imprisonment.  For  the  objectionable publication  offences  you  will  be  sentenced concurrently to four months on each. Your effective sentence will be two years, six months.

[64]     The conditions recommended, in the event that I imprison you, cannot apply because your sentence exceeds two years. My intent, in sentencing you to the term that I have, I wish to be clear, apart from the fact that it is warranted by your offences, is to enable you to enter and complete the Te Piriti program. That, I think, is critical both to your future wellbeing and to reduce the real risk you otherwise present to the community.

[65]     There will be an order for the destruction of the objectionable images.

P.J. Keane J