R v Lindsay
[2021] NZHC 2160
•17 August 2021
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
ORDER PROHIBITING PUBLICATION OF THE PSYCHOLOGICAL REPORT PREPARED BY MR JIM VAN RENSBURG, WITH THE
EXCEPTION THAT THE MEDIA MAY REPORT THAT MR VAN RENSBURG DID NOT VIEW A CUSTODIAL SENTENCE AS NECESSARY AND THAT HE RECOMMENDED THAT A COMMUNITY SENTENCE WITH STANDARD CONDITIONS WOULD BE APPROPRIATE.
ORDER PROHIBITING PUBLICATION OF THE ADDRESS AT WHICH THE SENTENCE OF HOME DETENTION IS TO BE SERVED.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-004-007093
[2021] NZHC 2160
THE QUEEN v
GRAEME CHARLES LINDSAY
Hearing: 17 August 2021 Appearances:
J Barry and A Mateni for Crown
N P Chisnall and L A Elborough for Defendant (Mr Lindsay appearing by AVL from District Court in Levin)
Sentencing:
17 August 2021
SENTENCING NOTES OF WYLIE J [REDACTED]
R v LINDSAY [2021] NZHC 2160 [17 August 2021]
Introduction
[1] Mr Lindsay, you may remain seated until I ask you to stand. You appear for sentence today having entered guilty pleas to two charges – the first of having indecently assaulted a boy under the age of 16,1 and the second of committing an indecent act upon another boy, also under the age of 16 years.2
[2] Both offences are historic, having been committed in 1974/1975. At the time, the maximum penalty for the offences was 10 years’ imprisonment. The statutory provisions under which the charges were laid have been repealed.3 The maximum sentence of imprisonment available in respect of such offending is now one of seven years.4 You are entitled under our law to the benefit of the lower maximum penalty.5
Relevant facts
[3] Your offending came to light as part of Operation Beverly, a police investigation into allegations of historic sexual abuse by individuals associated with the Dilworth School. You were not charged during the first phase of the operation. Rather, your offending came to light as a consequence of media attention to the first phase of the operation.
[4] The charges against you relate to offending against two complainants, D and S, when they were aged 12-13 years and you were around 24 to 26 years old.
[5] In 1974 and 1975, you were an assistant Scout leader for the Hauraki Scout Group and a Scout leader for the Dilworth School Scout Group. You were also a tutor at Dilworth School. In your role as a Scout leader, you were responsible for leading and organising various scouting activities such as tramping and camping trips.
[6] The first offence occurred during 1975. You had organised for a group of Scouts from the Dilworth School to go on an overnight camp. During the night, you
1 Crimes Act 1961, s 140(1)(a) (repealed).
2 Section 140(1)(c) (repealed).
3 Crimes Amendment Act 2005, s 7.
4 Under the equivalent section – s 134(3) (sexual conduct with young person under 16).
5 New Zealand Bill of Rights Act 1990, s 25(g) and Sentencing Act 2002, s 6.
placed your hand inside D’s underpants, massaging his penis and scrotum. When D turned over, you pulled your hand away. The following day, D kept his distance from you before returning to the school.
[7] The second offence occurred sometime in 1974 or 1975. You were with the Hauraki Scout group on a trip that involved kayaking to Rangitoto Island and then staying overnight on the island in a Scout bach. The Scouts had finished a swim near the wharf. You were alone with S while you walked back to the bach that you and Scouts were staying in. You led S into some bush off the path. You stopped, pulled your shorts down and faced S. You verbally induced him to place his hands on your erect penis. S froze in confusion, before taking his hands off your penis and walking back to the bach.
Victim impact statements
[8]I have received victim impact statements from both complainants.
[9] D says that the best way he can describe the impact of the violation on him is to say that he has spent years suffering in silence. Until a media release in September 2020, he had told nobody of the assault, not even his wife or his children. He is still too traumatised to recount the events, and even now, when he thinks about your offending, it makes him feel dirty and disgusted. The incident has changed his life, made him more streetwise and very cautious about predatory males. He says that when the offending was brought to light it was traumatic for him and uncovered nasty wounds that he does not think will ever heal.
[10] S describes the impact on him as unsettling and difficult. It has had an emotional impact on him for years. He was encouraged to join the Scouts by his father, and as a young boy, he was deeply impressionable. What occurred was a deep shock. Prior to your offending, he had no concept of sexual activity. All he knew was that a figure he looked up to and trusted was doing something to him that he did not understand. He knew instinctively that it wasn’t right and he was left bewildered. The offending has sat in his mind all of his life and he has simply tried to suppress it. He never discussed it with his parents, who have since passed away, and only in recent years has he confided in others. When he was younger, he was deeply confused and,
as an adult, he has wondered if it has influenced or changed the way he developed. In more recent years, anger has boiled to the surface whenever he gives himself permission to think about it. It has taken nearly a lifetime to find the personal courage to talk to the police.
Pre-sentence report
[11] The Provision of Advice to Courts report records that you are now 71 years old. [REDACTED] You report that you follow the Buddhist faith. You say you hold spiritual beliefs and are trained in the “Lifeline Technique”, which you described as an integrative therapeutic system that transforms human behaviour and biology through processing emotions buried in the subconscious.
[12] You previously owned and operated a coffee cart until you were unable to do so due to Police bail conditions. You are now retired and heavily involved in your local community, including being a member of your local ratepayers association and a social dance group.
[13] You and your ex-wife separated after 20 years’ of marriage. The report writer confirmed that your ex-wife is still supportive of you. You have two adult children and three young grandchildren living overseas, as well as three brothers in New Zealand who you are not particularly close to. You named a recent partner as your main support person, though she told the report writer she was not prepared to continue with the relationship in light of your convictions.6
[14] [REDACTED] You report to having previously struggled with depression but say that you have now learned techniques to manage your mental health. [REDACTED]
[15] You recently underwent a relatively major medical operation and you currently take medication for various issues.
[16] You accepted the Summary of Facts (albeit noting that you could not recall one of the incidents). You denied being sexually attracted to young boys but you were
6 [REDACTED].
unwilling or unable to fully explain the motivation for your offending. The report writer considers that you tend to justify and minimise your actions, displaying little remorse or empathy for your victims. Though you said you would apologise to your victims if you met them today, this was at the prompting of the report writer who considered that it appeared forced rather than genuine. The report writer viewed you as entitled, self-important and supercilious in nature.
[17] The report writer also considered that your conviction history reflects an underlying escalation in your risk of harm to others, especially vulnerable boys you can access through positions of power. However, you were assessed as being at low risk of further sexual offending. The recommendation was imprisonment in order to denounce your offending and hold you accountable for the harm you have caused, but it was recorded that your present address is suitable for the purposes of electronic monitoring should the Court impose a sentence of home detention.
Psychological report
[18] A psychological report has been provided to the Court by Mr Jim van Rensburg, a registered clinical psychologist.
[19] [REDACTED] Mr van Rensburg does not consider that you have any reintegration needs and noted that you are unlikely to benefit from further treatment at this stage. Consequently, he differed from the pre-sentence report writer in that he did not view a custodial sentence as necessary. Instead, he recommended a community-based sentence with standard conditions.
Submissions
[20] Mr Barry for the Crown submitted that this Court should sentence you in accordance with current sentencing methodology but with regard to sentencing levels and the statutory maximum penalty at the time of your offending. He identified the aggravating factors as the extent of the touching, the scale of the offending, the breach of trust, the age disparity, the vulnerability of the victims and the harm caused to the victims. Referring to a decision of the Court of Appeal in 2018, Parkin v R,7 he
7 Parkin v R [2018] NZCA 404.
submitted that the appropriate starting point should be in the region of 26 months’ imprisonment. [REDACTED] He also noted that you are entitled to the maximum credit available for your early guilty pleas. Given your low risk of reoffending, Mr Barry acknowledged that a sentence of home detention could be appropriate. He did not consider that you meet the criteria for registration on the Child Sex Offender Register.
[21] On your behalf, Mr Chisnall agreed with the Crown’s methodology for calculating the appropriate sentence. He also broadly agreed with the aggravating features identified by the Crown, though he cautioned against double-counting in respect of the vulnerability and breach of trust factors. He also highlighted that the incidents were brief, with a single instance of offending against each victim and no physical or psychological coercion used against S. He submitted that the starting point should be around 18 to 20 months’ imprisonment, referring to Parkin v R and to a High Court case, R v Richards.8 In terms of personal mitigating factors, he contended that you should be afforded a 15 per cent reduction [REDACTED], as well as a global discount for good character, rehabilitative efforts and remorse (including a 5 to 10 per cent discount for your good character since 1982 and a 5 per cent discount for remorse and willingness to attend restorative justice). Mr Chisnall further submitted that a 5 per cent discount is warranted for your ill health and age and a 25 per cent discount for your guilty pleas. He submitted that a sentence of community detention is the least restrictive sentence available and that registration as a Child Sex Offender is unnecessary.
Analysis
[22]I turn to consider all of the materials I have before me.
Principles and purposes of sentencing
[23] In sentencing you, I need to have regard to the purposes and principles of sentencing outlined in the Sentencing Act 2002.9 In particular, I must consider the need to hold you accountable for your offending, to promote in you a sense of
8 R v Richards HC Auckland CRI-2010-004-6987, 15 December 2011.
9 Sentencing Act 2002, ss 7 and 8.
responsibility for and an acknowledgement of that offending, and to denounce the conduct in which you were involved. I must take into account the gravity of the offending in which you were involved, including your culpability. I must consider the general desirability of consistency of appropriate sentencing levels between similar offenders committing similar offences, and the need to impose the least restrictive sentence appropriate in your circumstances.
Approach to sentencing historic offending
[24] You were charged under s 140(1)(a) and s 140(1)(c) of the Crimes Act 1961 which were the applicable sections at the time of your offending. As I have already noted, they each carried a maximum penalty of 10 years’ imprisonment. The section was replaced by s 3 of the Homosexual Law Reform Act 1986 on 8 August 1986 and subsequently repealed on 20 May 2005 by s 7 of the Crimes Amendment Act 2005. The modern equivalent section, s 134(3) – doing an indecent act on a young person – carries a maximum term of seven years’ imprisonment. You are subject to the maximum penalty prescribed by s 134(3), being the lesser penalty.10 As the Court of Appeal has confirmed, this Court should seek to fix a starting point by reference to sentencing levels at the time and which recognises the aggravating features of your offending.11
Sentencing for indecencies in the 1970s
[25] Sentencing in the mid-1970s followed a rather less sophisticated methodology than is used today and starting point sentences were not generally identified in the sentencing decisions made at the time.12 As a result, it is difficult to find out what the starting point sentencing levels were. In any event, the Court should not try and reconstruct the sentencing practices of the 1970s. Present day attitudes must govern the sentencing approach.13 In this regard, it has been observed that the sentencing approach in cases of child sexual abuse in the 1960s and 1970s was no different to the approach of denunciation and deterrence currently prevailing.14
10 New Zealand Bill of Rights Act 1990, s 25(g) and Sentencing Act 2002, s 6 and see R v Hearling
[2009] NZCA 298 at [13].
11 R v KJB [2007] NZCA 292 at [28]-[34] and see Hinton v R [2016] NZCA 269 at [91].
12 See R v P-T HC Whangarei CRI-2009-088-002118, 14 May 2010 at [15].
13 R v Accused (1998) 15 CRNZ 602 (CA) at 609.
14 At 609.
Starting point – features of the offending
[26] There was and still is no guideline decision for sentencing the offence of committing an indecency with a young person. Rather, each case must be examined on its own facts.
[27]I accept that your offending involved the following aggravating features:
(a)Breach of trust: You occupied a clear position of trust which you betrayed when you offended against both victims. As S described in his Victim Impact Statement, Scout leaders held “high positions of trust” akin to the role held by teachers. They were trusted by the Scouts under their care and control.
(b)Extent of touching: The offending against both victims involved skin to skin contact. It was particularly intrusive in relation to D.
(c)Scale of offending: The offending was against two different victims.
(d)Age disparity: There was an appreciable age difference. You were an adult some 12 to 14 years older than your young victims. This added to the victims’ vulnerability.
(e)Harm: D and S both record the deep impact your offending has had on them and continues to have on them notwithstanding the years that have passed since it occurred. As I have noted, D recounted how the past year has “uncovered nasty wounds” which he does not think will truly heal. S says that the offending has sat in his mind all of his life and that for much of the time he has simply tried to suppress it.
[28] I also accept that there are mitigating factors to your offending. Your offending comprised two discrete incidents each of seemingly short duration. There is no indication of premeditation or grooming. You characterised the offending as opportunistic and I suspect that that is an accurate description. It appears you simply took advantage of situations where you had access to the victims alone and when you were unlikely to be interrupted by others.
[29]I now turn to consider broadly comparable cases.
[30] Mr Chisnall referred me to a recent decision of Downs J – R v Morris.15 The Judge there recited sentences imposed on an offender for a series of broadly comparable offences to those for which you are currently being sentenced.16 The offending there in issue took place in 1979 and in the early to mid-1980s. It seems to have concluded in 1990. In 1979, the offender was fined in respect of an indecent assault on a boy under the age of 16. In 1980, he was convicted of two offences of doing an indecent act on a boy under 16 and sentenced to six months’ imprisonment. In 1982, he was convicted of indecently assaulting a boy under 16. He was given probation and fined. In 1987, he was convicted of doing an indecent act, given supervision and ordered to attend counselling. In 1990, he was convicted of 15 charges of inducing an indecent act with a boy between 12 and 16 and one charge of anal intercourse. He was sentenced to a year’s imprisonment.
[31] It appears that in each case, Downs J was referring to the end sentences imposed rather than the starting points. Mr Chisnall nevertheless observed that Downs J’s review tends to suggest that imprisonment was not routinely imposed for such offending at least in the late 1970s.
[32] I have also considered other broadly comparable cases. Although some of the judgments are relatively recent, many of them refer to sentencing for offending in the 1970s.17
15 R v Morris [2020] NZHC 1662.
16 At [18].
17 R v Kihi HC Auckland CRI-2008-044-7949, 7 April 2009 – two indecent acts on boys under 16. One offence involved fondling victim’s genitalia outside clothing. The other offending involved the same actions, but inside the victim’s pants. Starting point of two and a half years adopted; R v L CA124/01, 18 February 2002 – four indecencies on boys under 16. Offending occurred in 1970s. Grooming. Offender fondled boys genitals as they were sleeping and got one victim to put his hand on his penis. Starting point of five years’ imprisonment not disturbed on appeal; R v Milligan [2013] NZHC 118 – multiple charges including three representative counts of indecent acts on boys under 16 during the 1960s and 1970s. Offender induced victim to touch his penis on an overnight boat trip. Starting point of three years; R v Dawson HC Rotorua JT58/99, 14 April 2000 – multiple charges including two indecent acts on a boy under 16 and two indecent acts on 16 year old boys, occurring in the 1970s to 1990s. Offending involved touching and masturbating. End sentence of four and a half years; Camden v Police HC Christchurch AP 2/90, 10 May 1990
– two offences involving indecent acts on boys aged 8-9 and 11 and 12 between 1978 to 1979, with offending occurring on camping trips. End sentence of eight months’ imprisonment substituted on appeal; R v Bull HC Hamilton TO30322, 6 April 2004 – four charges of indecent acts with boys under 16 along with other charges. Offender was acquainted with boys who attended the gym he owned. Indecencies involving massaging and fondling the boys’ genitalia
[33] Mr Barry referred me to the Parkin v R.18 The offender was there sentenced on two charges of indecent assault on a girl aged between 12 and 16 between 1980 and 1981. The offender was 28 or 29 years old at the time. It involved skin to skin touching. On another charge, the offender exposed his erect penis to the girl and made her sit on his thigh. He took her hands and made her stroke his penis several times. The sentencing Judge adopted a starting point of 22 months’ imprisonment which was not disturbed on appeal.
[34] Mr Chisnall referred to R v Richards,19 a decision of this Court. In that case there were two charges of indecently assaulting a 12 year old. The offending occurred in the 1970s and the defendant was aged 26. Peters J held that the appropriate starting point was in the vicinity of 18 months to two years’ imprisonment. The Judge ultimately adopted a starting point of 21 months’ imprisonment.
[35] Considering all of these matters in the round, I consider that the appropriate starting point in your case is 24 months’ imprisonment.
[36]I now turn to consider factors personal to you.
Aggravating and mitigating factors personal to Mr Lindsay
[37][REDACTED]. No other personal aggravating factors have been identified.
[38]There are several potentially mitigating factors.
[39] Mr Chisnall submitted that you should be entitled to a discount for your previous good character. Mr Barry suggested that the 1982 convictions tell against any discount in this regard.
[40] [REDACTED]. In my view, your character today is best acknowledged not by a discrete discount but by allowing you a broad credit for your reintegration and rehabilitative efforts. [REDACTED] you have sought treatment and counselling to address the root causes of your offending. I accept that you have been a law-abiding
while on climbing trips. End sentence of one year’s imprisonment on each indecent act.
18 Parkin v R [2018] NZCA 404.
19 R v Richards HC Auckland CRI-2010-004-6987, 15 December 2011.
citizen [REDACTED], contributing to society through your academic positions and, more recently, your role in your community. Your contributions are evidenced by the letters in support which have been filed and which I have read. I am prepared to allow you a discount of 15 per cent to recognise these various factors.
[41] I now turn to remorse. The Court can only allow a reduction for remorse where it considers any remorse expressed is genuine. While the pre-sentence report writer was not convinced that you feel empathy for your victims or show insight into your actions, the psychological report is more favourable to you. [REDACTED]
[REDACTED]
You have written a letter of apology to the victims which I accept reflects some recognition of the harm you have caused them. You also offered to participate in a restorative justice conference with the victims (both declined your offer). I am satisfied that you have expressed, at least to me, remorse and that it is genuine, albeit belated. I am prepared to allow you a discount for remorse of 5 per cent.20
[42] I turn to your acknowledged poor health and your age. The extent to which age and ill-health can mitigate an offender’s sentence depends upon the circumstances of the offence and the offender. Any reduction should generally be “limited”.21 You are 71 years of age. A letter from your doctor, Dr Ben Niewoudt, confirms you have developed complications from surgery earlier this year. It is however unclear whether these complications will be ongoing or more difficult to manage if you are to serve a custodial sentence. In the circumstances and given the sentence that I will be imposing on you, I decline to allow you a discount for your age and ill health.
[43] Finally, there are your guilty pleas. It is not contested that you should enjoy the maximum guilty plea discount available of 25 per cent. You took the responsible step of entering guilty pleas at an early stage.
20 Where there is tangible evidence of genuine remorse, a discount of around 5 to 8% is appropriate: see McArthur v R [2012] NZCA 600 and Rowles v R [2016] NZCA 208.
21 M(CA91/12) v R [2013] NZCA 325 at [54].
[44] It follows that I would allow you discounts totalling 45 per cent from the sentence I would otherwise impose. This would take my end starting point to one of 13 months’ imprisonment (allowing for some rounding).
[45] This is a short-term sentence of imprisonment and this permits me to consider home detention.22
Home detention
[46] The Court of Appeal has previously stated that the likely sentencing outcome for sexual offending against young children is imprisonment,23 though more recent decisions emphasise that the decision to impose home detention or imprisonment requires an evaluation of all relevant purposes and principles of sentencing.24
[47] In your case, you have engaged in rehabilitation, you seem to be functioning well in the community and you have not offended [REDACTED]. As the psychological report records, you have several protective factors mitigating any risks of reoffending.25 As I have already noted, you pleaded guilty at an early stage and you have displayed a level of insight into your offending. Though it is necessary to denounce your conduct and hold you accountable for the harm you have caused to the victims, deterrence is not a central consideration in your case.
[48]Significantly, Mr Barry, for the Crown, supports a sentence of home detention.
[49] I consider that a sentence of home detention is appropriate for you. I do not agree with Mr Chisnall that a sentence of community detention would sufficiently denounce your offending.
[50] I have considered s 84 of the Sentencing Act. The offences were similar in kind and both occurred in a similar context. I am satisfied that concurrent sentences of home detention are appropriate.
22 Sentencing Act 2002, s 15A.
23 Kennedy v R [2011] NZCA 569 at [8].
24 See Parkin v R [2018] NZCA 404 at [42].
25 There are thus similar considerations in this case as in H (CA36/2012) v R [2012] NZCA 33 at
[30] and [33], in which home detention was imposed on appeal for historical indecent act offending against a child victim.
Sentence
[51]Mr Lindsay, will you please stand.
[52] In respect of each of the convictions for indecently assaulting a boy under the age of 16 years and for doing an indecent act on a boy under the age of 16 years, I sentence you to six months and two weeks’ home detention. The sentences are to be served concurrently.
[53] The sentences are to be served at the address of [REDACTED]. That address has been assessed as being both physically and technically suitable for electronic monitoring purposes. You have signed the standard offender’s agreement and you reside alone at the proposed address.
[54] You are to go straight from the Court at the conclusion of this sentencing to the address at [REDACTED] and you are there to await the attendance of a Probation Officer and the installation of the electronic monitoring bracelet.
[55] The standard conditions imposed by s 80C(2) of the Sentencing Act are to apply. In addition, I impose the following special conditions under s 80D to mitigate such limited risk of further offending as you may present:
(a)You are to attend an assessment for Wellstop as directed by a Probation Officer, and you are to attend and complete any further counselling, treatment or programme as recommended by the assessment and as directed by and to the satisfaction of a Probation Officer.
(b)You are not to communicate in any way or associate with your victims, without the prior written approval of a Probation Officer.
Child Sex Offenders’ Register
[56] Both of your offences are qualifying offences under Schedule 2 of the Child Protection (Child Sex Offenders Government Agency Registration) Act 2016. That Act has retrospective effect and it applies to your offending despite the fact that your offences were committed in 1974/1975.
[57] The Act sets a two-tier scheme for registration. First, an offender is automatically registered when they are sentenced to a term of imprisonment for a qualifying offence. Secondly, a Court can order that an offender be placed on the register if that person is sentenced to a non-custodial sentence. Such an order can only be made if the Court is satisfied that the person poses a risk to the lives or sexual safety of one or more children or of children generally. Mandatory factors which have to be considered by the Court are listed in s 9(3) of the Act.
[58] I have considered the various s 9(3) factors. Your offending involved indecencies, but it was not the most serious offending of its kind. It did however involve skin on skin contact of the genitals, and that of itself is serious. It is nearly 50 years since your offending occurred and you are now aged 71 years. At the time of your offending you were aged between 24 and 26 years and your victims were aged between 12 and 13 years’ respectively. The age difference was some 12 to 14 years. Both the pre-sentence report writer and Mr van Rensburg assess you as now posing a low risk of reoffending. Neither of the complainants has addressed the issue of registration specifically in their victim impact statements. Nor do I have any other evidence relevant to such risk as you now pose.
[59] Mr Barry responsibly accepted that the various s 9(3) factors point to the fact that you no longer pose any particularly significant ongoing risk.
[60] As a consequence, I do not consider that the threshold for registration has been met. I direct that your name is not to be placed on the Child Sex Offenders Register.
[61]Mr Lindsay, you may stand down.
Suppression
[62] Having heard from counsel, from Mr Weeks on behalf of the New Zealand Herald and from Mr Bond on behalf of Radio New Zealand, I make suppression orders under s 205(2) of the Criminal Procedure Act 2011 and in the exercise of my inherent jurisdiction, prohibiting publication of the following:
(a)the psychological report prepared by Mr Jim van Rensburg, with the exception that the media may report that Mr van Rensburg did not view a custodial sentence as necessary and that he recommended that a community sentence with standard conditions would be appropriate for Mr Lindsay;
(b)[REDACTED]; and
(c)the address at which the sentence of home detention is to be served.
Wylie J
Solicitors/counsel:
Meredith Connell, Auckland N P Chisnall, Auckland
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