R v Locke HC Wellington CRI-2007-091-1343

[2008] NZHC 2560

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

1985

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2007-091-1343

THE QUEEN

v

BARRY DONALD LOCKE

Hearing:         5 September 2008

Appearances: C Boshier for the Crown

K Jefferies for the Prisoner

Sentence:       5 September 2008

SENTENCING NOTES OF CLIFFORD J

Introduction

[1]      Mr Locke, you appear at the age of 63 for sentence on 29 charges of historic sexual abuse.

[2]      Your offending occurred between 1976 and 1985.   You were then in your thirties.  Your victims were two sets of brothers, who were themselves step-brothers, C and SK and T and FR. At the time of your offending your victims were between

the ages of 6 and 16 years.

R V LOCKE HC WN CRI-2007-091-1343  5 September 2008

[3]      Your offending involved various sexually indecent acts, including acts of sodomy and attempted sodomy.

[4]      You entered guilty pleas to the majority of the charges you faced on 31

March this year.  At the commencement of your trial you pleaded guilty to a further two charges of indecent assault.

[5]      You pleaded not guilty, however, to four charges, one of indecent assault and one of sodomy against CK, one of sodomy against TR, and one of attempted sodomy against FR.  Your trial on those charges was held before me here in the High Court at Wellington.  A jury found you guilty of each of those four charges.

[6]      The specific offences to which you have pleaded guilty, or of which you have been found guilty, are as follows:

a)        As regards CK, one count of sodomy and three counts of indecent assault.

b)        As regards SK, eight counts of indecent assault.

c)        As regards TR, one count of sodomy, three counts of indecent assault and two counts of inducing an indecent act.

d)As  regards  FR,  one  count  of  attempted  sodomy,  eight  counts  of indecent assault and two counts of inducing an indecent act.

[7]      All of those charges were laid as representative charges, save for the count of sodomy involving CK.

[8]      In terms of the provisions of the Crimes Act 1961 in force at the time of your offending, under which provisions those charges were laid, the following maximum terms of imprisonment apply:

a)        Sodomy, 14 years;

b)        Attempted sodomy, 7 years;

c)        Indecent assault, 10 years; and

d)       Inducing an indecent act, 10 years.

Background facts

[9]      The facts upon which I am to sentence you are as follows.

[10]     You would appear to have first met C and S’s mother in the early 1970s.  She was separated from the boys’ father.  In 1976 you moved in with the family.  The sexual abuse started soon after that.

[11]     You lived with the family between 1976 and 1978.   C and S were then between 8 and 10 and 6 and 8 respectively.  During this period you sexually abused each of them on a number of occasions by fondling their penises under a blanket whilst you were on the couch with them watching TV with other members of the family.

[12]     On other occasions you rubbed your penis against S’s back.  When S was in the bath, you got in with him and you rubbed your penis between his legs until you ejaculated.  S would often get into bed and sleep with you.  You performed oral sex on S while you masturbated.

[13]     Whilst you were living with the family you would take them out for meals at weekends to a local hotel.  After lunch you would swim with the boys in the hotel pool. You fondled the boys’ penises whilst swimming with them in the pool at that hotel.  On other occasions during the same period you took S to another pool and, in that pool, rubbed your penis between his legs until you ejaculated.

[14]     In the late 1970s you moved out of the family’s house and went to live in your own flat.

[15]     Between 1978 and 1979 C, who was between 11 to 12 years old and at his Intermediate School, came to live with you.  C came to live with you was a way out of his difficulties at his violent home.  The indecent acts continued.  C would sleep in your bed most nights, and you would rub your penis between his legs.

[16]     On one occasion during this period you sodomised C.  C recalled waking up because  of the  associated  extreme  pain.    He  was  bleeding  from  the  anus.    He subsequently suffered bowel problems.  C moved back to live with his mother for a while shortly after this incident.  Some time later, C moved back to live with you again.  By this time you had moved to another flat.  This time C was old enough to make clear to you he was not prepared to tolerate your sexual activity.  You appeared to have accepted that.

[17]     SK also lived with you for a number of years at that second flat.  During this time, when S was between 10 and 16 years old, your indecent conduct with him escalated to you performing oral sex on him, and having him perform oral sex on you, on numerous occasions, both at your flat and when you took S away with you on sales trips around the North Island.

[18]     The second set of brothers, T and FR, would also come and stay with you at weekends and other times at those two flats.

[19]     Your sexual abuse behaviour with T and F showed a similar pattern as it had with C and S, although T and F were not as young at the outset.  It began in 1978 when T was 10 years old and continued until he was 12.   In F’s case, it began in

1981 when he was 12 years old and continued until he was 16.  In each of their cases it began  with  you fondling their penises and  getting them to touch  your penis, sometimes while swimming with them in the spa pool at the flat or at a local pool. You progressed to oral sex with both of them, and to rubbing yourself against them and between their legs until you ejaculated.  In T’s case you also licked his anus and induced him to put his penis into your anus.  As with S, you also took F away with you on sales trips around the North Island, and the abuse occurred on those trips as well.

[20]     You committed sodomy on TR and attempted to sodomise FR.

[21]     Considered overall, it is clear that this pattern of conduct involved sexual abuse of an increasingly serious nature over time between you and each of these boys.   Your victims were vulnerable young boys from difficult, violent family backgrounds.   You exploited that vulnerability systematically over a considerable period of time.

[22]     At the same time, issues of sexual abuse aside, each of the complainants willingly acknowledged that you were generous to them.  Whilst living with them, you supported C and S’s family financially.  As well as outings to the local hotel and its pool, you took the family – and the boys separately – for meals to places like Pizza Hutt and Kentucky Fried.  C gave evidence that whilst he lived with you you supported him financially.  Anything he needed, he said, that you could afford you gave to him.  T and F also acknowledged similar behaviour as regards them.   TR spoke of gifts – not lavish, but things like games, and spoke of how there were – in his words, “nice things” at your flats.  FR also acknowledged that you were friendly and – unlike in his home environment – you did not put him down.

[23]     It is clear to me that these boys regarded your company as a refuge from their own, difficult family circumstances.

[24]     In my view, however, your generosity was clearly motivated, if not entirely then at least to a significant extent, by the opportunity you found – and exploited – to indulge your sexual preferences with these vulnerable young people.   In so doing you destroyed their innocence. Each of the three complainants who gave evidence at your trial testified that your behaviour caused very significant problems for them later in their lives.

Sentencing process

[25]     Mr Locke, I am now going to refer to the pre-sentence reports and to the victim impact statements that have been provided.  As we have heard, I acknowledge the  presence  in  Court  today of  FR,  one  of  your  victims,  who  has  spoken  this

morning, with difficulty, but with eloquence, of the impact your offending had on him.

Pre-sentence reports

[26]     Three pre-sentence reports were prepared.   The Probation Section of the Department of Corrections prepared a report and two reports were prepared under s 88 of the Sentencing Act 2002, at the request of the Crown when the Crown was considering applying for a sentence of preventive detention.  The Crown makes no such application today.   Those reports, however, do contain relevant information relating to you.

[27]     They all provide a similar perspective on your character, your life and your attitude – both at the time and now – to this offending.

[28]     You realised from an early age that you were homosexual.   You report as being sexually active from the age of 6 years old, that from the age of eight you engaged in sexual activity with a variety of men, and that from the age of eleven you were charging for sex.  At your trial, and again in your pre-sentence interviews, you stated that you enjoyed your own early sexual experiences.

[29]     At the time of this offending, you did not consider what you were doing was wrong.  Rather, you appeared to have regarded your sexual activity with these four boys as part of your relationship with them whereby you provided a more secure and

–  from  your  perspective  –  loving  environment  than  they found  with  their  own parents.   You considered that you never forced yourself on your victims, and you indicated that you thought at the time the sexual behaviour was consensual.  You say that you enjoyed the affection you got from your young victims, as you did not have much experience of that emotion in your life.

[30]     In  a  passage  which  in  my  judgment  appropriately  summarises  all  these matters, the clinical psychologist who interviewed you reported as follows:

Mr Locke placed himself within a situation where he had easy access to a number of male victims and convinced himself that the treats and outings that he was offering his victims had nothing to do with the sexual activity

that he was engaging in with the four boys.   These distorted thoughts and belief allowed him both to begin and maintain his offending over a long period of time.  They also prevented him from seeing his victims’ distress and unhappiness during the offending, thus precluding the experience of empathy.   In addition, Mr Locke gained sexual arousal and satisfaction through  his  offending  behaviour.    Due  to  his  lack  of  relationship/inter personal skills and his lack of other intimate attachments, Mr Locke also had his needs for intimacy and affection met through his inappropriate relationships with his victims, feeling that he was loved and appreciated.

[31]     The reports also record that, some time later, you realised that your actions had been inappropriate and that similarly, whilst at the time you did not see the trauma your conduct inflicted on your victims, you are now aware of that.  It would be difficult for you not to be, given the evidence you heard at trial, the victim impact statements that you will have had the opportunity to read and the remarks you have heard in Court this morning.

[32]     The reports record that you report as having had no sexual relationships now for some time.  You also report current ill health, and that you suffer from diabetes. The reports record that  you are not optimistic about your future, from  a health perspective, fearing that you will be diagnosed with cancer, of which there is a family history.

[33]     As recorded in  these  reports,  you  continue to  deny that  anal  intercourse occurred between you and the boys.

[34]     You have a prior 1975 conviction for indecent assault.

Victim impact statements

[35]     Turning to the victim impact statements.

[36]     Each of your victims has provided a written victim impact statement.

[37]     CK speaks of the long term harm inflicted on him by your breach of trust and by your sexual abuse.  He associates his subsequent behavioural and drug problems with you, noting that you introduced him to cannabis.

[38]     SK records that he was abused by you every day from the age of seven to the age of 14 years.  He says that the emotional harm done to him by you has left him totally isolated and broken.  At the age of 39 years he has not been able to form any lasting relationships.  The abuse has had a detrimental effect on his ability to form relationships.   “Mr Locke has destroyed my ability” he says, “to trust others, especially males”.  “I identify as homosexual” he says “yet have the most difficulty trusting males”.

[39]     Both T and FR also speak of the guilt and shame they suffered throughout their lives as a result of your offending.  I do not need to repeat F’s comments this morning in Court.

[40]     T  says  that  your  selfish,  sick  and  deviant  behaviour  robbed  him  of  his innocence, his self-worth and his source of pride.  T, who is separated from his wife with  whom  he  has  six  children,  records  that  he  now  realises  that  he  felt uncomfortable changing nappies and washing and bathing his children because of your offending.  He speaks of the struggle he has had to express a normal range of human emotions.

[41]     It  is  clear  to  me,  as  I said  at  the  outset,  that  your  selfish  behaviour  of indulging your sexual preferences with these vulnerable young boys, and exploiting your trust in them to do so, blighted their lives.

Other material

[42]     Mr Jefferies did provide a letter of support from a previous employer.  That person spoke of your enthusiasm for your job and your responsibility and trustworthiness.

Submissions for the Crown

[43]     I turn now to the legal submissions.  In general submissions, which are not disputed by Mr Jefferies, the Crown has provided me with references to Court of

Appeal decisions on the general approach to be taken by Judges when sentencing for historic sexual offending.  With reference to the case of R v Clark [1987] 1 NZLR

380,  the  Crown  suggests  that  on  the  lead  charge,  identified  as  being  the representative charge of sodomy against TR, a starting point of five years imprisonment is appropriate.

[44]     The Crown then submits that an uplift of three to five years is required, to reflect the other serious charges of sodomy and attempted sodomy, the numerous other offences, together with a number of aggravating factors.

[45]     In terms of mitigating factors, the Crown acknowledges that you are entitled to a degree of credit for your guilty pleas.  The Crown also acknowledges that you have not appeared on any other relevant matters since this offending occurred.

Submissions for the Prisoner

[46]     Mr Jefferies acknowledges that at the time of your offending you did not fully appreciate the adverse legacy that such behaviour left on your victims.  He says you are now most remorseful for the damage you have caused.  He points to the fact that there is no suggestion of any recidivist type offending, and submits that you have subsequently lived a blameless life during which you have been employed, albeit living a somewhat solitary existence.  He submits you are entitled to credit for your guilty plea, and for those long years of good behaviour since the offending.  He further submits, in terms of relevant sentencing and mitigating principles, that you are  motivated  to  address  rehabilitation  issues  and  happy  to  submit  to  any programme.  He submits that you have a low risk of re-offending and makes certain criticism of comments to the contrary in one of the reports prepared for the purposes of sentencing.  He reminds me that I should impose the least restrictive sentencing outcome appropriate in the circumstances.

[47]     Mr Jefferies acknowledged that a term of imprisonment is appropriate. He submitted that a starting point of seven years would be appropriate.  He relied on the cases which I will refer to in a moment.  From that starting point he says you should receive a discount of  at least two  years for  your guilty pleas, subsequent  good

behaviour and failing health.  Accordingly he submitted that a term of imprisonment of five years would be appropriate.

Sentencing Discussion

[48]     In general terms, subject to a number of exceptions, the general principle is that an offender is to be tried and sentenced in terms of the law in force at the time of their offending.  Applying that general principle to sentencing for sexual abuse that occurred – as here – between 20  and 30  years ago, gives  rise to  a  number  of difficulties.

[49]     Recognising those difficulties, which include the relative lack of sentencing decisions for cases of inter-family – or non-stranger – sexual abuse, and differences in the approach to sentencing, the Court of Appeal in its 2004 decision R v R (CA224/04 2 November 2004) set out what it considered to be the correct approach.

[50]     The Court said that the correct approach was for the sentencer confronted with a case of historical abuse to fix a starting point based upon the sentencing levels of the relevant time and which recognised the aggravating features of the case. Then, if appropriate, allowance was to be made for mitigating features including of course the plea of guilty if there had been one.

[51]     That approach has recently been confirmed by the Court of Appeal in the

2007 decision R v KGB [2007] NZCA 292.

[52]     R v KGB also makes it clear that, in following the R v R approach, it is necessary to consider more contemporary sentences for historic sex offending of a similar nature.

[53]     I turn now to apply those principles to your offending Mr Locke.

[54]     The first step is to fix a starting point, based upon sentencing levels of the relevant time, which recognises the totality of your offending and the aggravating

features of the case, and which, as noted,  takes  account  of  more contemporary sentences for historic sex offending of a similar nature.

[55]     Clearly, the totality of your offending requires recognition not only of the representative charge of sodomy against TR but also the other serious charges of sodomy and  attempted sodomy,  and the numerous other offences, including the many instances of oral sex.

[56]     I consider the aggravating features of your offending, very much as identified by the Crown in its written submissions, to be:

a)        the gross abuse of your position of trust as a parental figure as regards these young boys;

b)        the irreparable harm you caused them;

c)        the vulnerability of your victims;

d)       the pre-meditated, prolonged, and repetitive nature of your offending;

and

e)        the actual physical harm caused to CK.

[57]     At the same time, I accept that your offending was not as depraved and perverse as in some cases which have come before the Court in recent times.  I also accept that your offending did not involve the high levels of violence, fear and intimidation seen in other cases of sexual offending against children.  Both T and FR did acknowledge that, as regards the sodomy and attempted sodomy offending, when they complained of associated discomfort you ceased that activity.

[58]     Ms Boshier suggested that R v Clark, a rape case, was the appropriate starting point indicator.  As I said, I am not sure that for sodomy offending in the late 1970s and early 1980s, rape sentencing is necessarily the relevant comparator.

[59]     In this regard, I note the 1986 Court of Appeal decision – not referred to me by either counsel – of R v H (1986) 2 NZLR 755, a sodomy case involving a victim over the age of 16. The maximum sentence was, therefore, in R v H seven years imprisonment.

[60]     In that case the Court of Appeal allowed an appeal against a sentence of three years, reducing it to two years.  R v H is usefully discussed in R v Darke (CA255/88

20 April 1989), an unreported Court of Appeal decision from 1989.  I do not need to report that discussion today counsel, save to note the conclusion of the Court in R v H, and endorsed in Darke that:

Insufficient cases have come before this Court to enable us to say that a discernible pattern of sentencing has emerged.   Plainly factors such as the age of the complainant, the presence or absence of consent, abuse of trust or authority by the offender, physical injury to the victim, established psychological or emotional damage to him, future risk to other persons and the age and personality of the offender are all material.

[61]     Further, I think R v H confirms that, in terms of the approach required by R v

R, I need to be cautious about the relevance of R v Clark.

[62]     In this context, I think that the two more contemporary cases of sentencing for historic sodomy and indecency offending referred to me by Mr Jefferies, namely R v Hibberd (CA387/00 22 February 2001) and R v P (CA41/01 20 September

2001), and the Darke itself, are of particular relevance in guiding my approach to your offending.

[63]     In the case of R v Hibberd, the Court of Appeal upheld an effective sentence of eight  years for offending which would  appear to have involved  considerable similarities to that involved here, involving 32 counts of sexual misconduct with six boys between the ages of 12 and 16, including two charges of sodomy and two of anal sex.   R v Hibberd would appear to have involved a limited number of guilty pleas.

[64]     Although   the   decision   was   principally   concerned   with   issues   of retrospectivity, in upholding the eight year sentence the Court observed, at [29]:

… We are far from persuaded that an eight year sentence was excessive given the scale and variety of the offending, the length of time over which it originally occurred, the resumption of offending in comparatively recent years, the breaches of trust (some victims were relatives) and the absence of guilty pleas for many of the charges necessitating the giving of evidence by five of the complainants.  In saying this, we have allowed for the fact that the general level of sentencing for this kind of offending was rather lower in the period covered by the prior offences than it has become in more recent years.

[65]     In R v P, the Court of Appeal considered an appeal against a seven year term, upholding that sentence.  Ten complainants were involved, and the offender faced 21 counts in all, four counts of sodomy, one of attempted sodomy, eleven of indecent assault and five of inducing an indecent act. R v P did not involve any guilty pleas.

[66]     In the sentencing appeal, the Court of Appeal concluded that the seven year sentence was well within the appropriate range.   In doing so the Court noted a number of features of the offending as identified by the sentencing Judge which bear considerable similarity to features of your offending.

[67]     In  R  v  Darke,  where  early  guilty pleas  were  entered  on  all  charges,  an effective sentence of seven years was upheld for sustained offending between 1981 and 1989 involving five boys  and progressing,  as here, from indecency to  anal intercourse.

[68]     Taking account of the circumstances of your offending, and having regard to the guidance provided by these Court of Appeal decisions, I consider that a starting point of eight years imprisonment is appropriate to take into account the criminality of all the charges you face and the aggravating features of your offending.

[69]   That conclusion reflects my assessment that your offending is broadly equivalent to that which was dealt with in those three cases.  It also endeavours to take account, as best I can, of guilty pleas and other mitigating factors reflected in the end sentences imposed in those cases.

[70]     I turn now to mitigating features personal to you, Mr Locke.   I accept that you pleaded guilty to 25 of the charges against you.  However, as you pleaded not guilty to the remaining charges, a trial was not avoided and three of your victims

were required to testify in Court.  As was evident at the time, that was an extremely distressing and embarrassing experience for them.  At the same time, the fact of your guilty pleas meant that the areas of dispute in the trial were limited.  Credit for your guilty pleas must take account of these matters.

[71]     I  also  recognise  that  recognition  may  be  given  where  an  offender  is  of advanced age and suffering from ill health.   However, at 63 years old I do not consider that you can automatically be categorised as being of advanced years.  At the same time, I recognise your diabetes condition and that you have concerns about your own future health, particularly in terms of cancer.

[72]     Mr Jefferies also refers to your remorse.  I am prepared to accept that you are now remorseful.  As I have observed already, it is difficult to see how anyone in your position would not be remorseful, given the evidence you heard at your trial and the matters recorded in the victim impact statements.   I note, however, that your continued denial of guilt on the sodomy charges limits the credit that can be given for remorse.

[73]     I also acknowledge that, since the time of this offending, you would not appear to have re-offended.   You have led a somewhat solitary lifestyle, but have been employed throughout the period.

[74]     Finally,  I accept Mr  Jefferies’  submission  that  you  are  today a  different person from the man who committed these offences thirty years ago.

[75]     I also record, Mr Jefferies, that I do not consider the risk of reoffending to be material for the purposes of this sentencing exercise.

[76]     Having regard to all these considerations, I consider that a discount of 18 months is appropriate.  Accordingly, the term of imprisonment to which I sentence you on the lead charge of sodomy against TR is six years and six months.

[77]     As regards the balance of the charges you face, I sentence you to a concurrent term of four years for the sodomy offending against CK, to a concurrent term of

imprisonment of two years for the attempted sodomy offending against FR and to concurrent terms of imprisonment of three years on each of the other charges you face.

[78]     You are, therefore, sentenced to a term of imprisonment of six and a half years.

[79]     Mr Locke, it goes without saying that the sentence I have imposed today is, in terms of the purposes and principles of the Sentencing Act, one principally intended to hold you accountable for, and to denounce, the wide-ranging and serious sexual abuse you committed on your victims.

[80]     No sentence this Court can impose can compensate your victims for what happened to them.

[81]     The sentence I have imposed is, however, as best I can judge, a fair and just response today to your offending that occurred so long ago.   It is, I note, a lesser sentence than would be imposed if such offending had occurred today.

[82]     To Mr Locke’s victims I express the hope that with his trial complete, and his sentence  imposed,  you  will  now  have a  further  foundation  for  moving on,  and recovering, from the effects of his offending.

[83]     Mr Locke, you may stand down.

“Clifford J”

Solicitors:           Jefferies & Raizis, Wellington (K Jefferies - [email protected]) The Crown Solicitor, Wellington (D La Hood – [email protected])