R v McCardle HC Auckland CRI 2008-092-1404

[2010] NZHC 1847

SUPPRESSION ORDERS EXIST AS NOTED IN PARAGRAPH [61] OF THIS JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-092-001404

THE QUEEN

v

GRAEME PAUL MCCARDLE

Hearing:         22 October 2010

Appearances: Mr K Raftery for Crown

Mr R Mansfield for Prisoner

Judgment:      22 October 2010

SENTENCING REMARKS OF LANG J

Solicitors/Counsel:

Crown Solicitor, Auckland

Mr R Mansfield, Auckland

R V GRAEME PAUL MCCARDLE HC AK CRI-2008-092-001404 [22 October 2010]

[1]      Mr McCardle, you appear for sentence today having been found guilty by a jury on five counts of indecent assault on a young boy by the name of C when he was 9 to 10 years of age.  That offending occurred some time ago, in 1984 and 1985. You have also been found guilty by a jury on four counts of indecent assault and six counts of unlawful sexual connection in relation to another complainant, a girl by the name of L, who was aged between 12 and 13 years when these events occurred. That offending occurred in 1986 and 1987.

[2]      The maximum penalty on each of the charges of indecent assault is one of ten years imprisonment.  The maximum penalty in relation to the charges of unlawful sexual connection is one of 14 years imprisonment.

Background

[3]      All of the offending arose out of a period during which you were engaged as a residential caregiver, or social worker, at a school for troubled and vulnerable children in BB, known as W School.  Children would go to that school because of trouble they were having at home or within the community.  Essentially their parents and other caregivers found that they were unable to deal with these children and the children would come to the school where they would be cared for on a 24 hour basis by both caregivers and teachers.  They would reside within dormitories at the school, they would have their meals in the dormitory houses and they would then spend their days in classrooms at the school.

[4]      Your function within the school was to provide care for the children on a rostered shift basis during periods when they were not actually at the school.  When you were on day shift, you would be there in the morning when the children got up, when they had breakfast and got ready for school.  In the afternoon shift, you would be  there  when  the  children  came  back  from  school,  did  their  homework,  had afternoon activities, and had their dinner.  On occasions you worked night shift.  You would then be there after dinner, during the period while the children got ready for bed and then during the night hours.

[5]      The offending against C, as I said, occurred when he was 9 to 10 years of age.  It occurred over a period of approximately 12 months.  You have been found guilty of five charges, of which four are representative charges.  This means that they do not relate to offending on a single or discrete occasion, but rather on a number of occasions.  Mr C spoke of the first occasion, which is not a representative charge, when on an evening whilst you were on night shift you held him down and masturbated over him.  He then described other occasions during night shift and in a room called the “time out room” where you would touch his penis.  You would also ejaculate on his stomach and legs in the time out room.

[6]      The last charge is another representative charge.  He says that you lay on his stomach and ejaculated over him in a room called the clothing room.

[7]      The charges relating to L are also representative to some extent in that four of those charges are representative charges.  The discrete charges, or separate charges, relate firstly to the first occasion on which something untoward happened.   She described going out on a swimming trip with the other members of the school.  She returned to the school in your vehicle.  When she got back after she had got changed, she says that you began kissing her on the lips and fondling her breasts.

[8]      Thereafter, matters proceeded to situations in which you would find a way to be alone with her.   Digital penetration of her vagina occurred, and she was also required to perform oral sex on you.  This occurred on several different occasions, including in her own room.  On other occasions you would rub your penis against her vagina, you would watch pornographic movies with her in the lounge during night shift and you would masturbate and other sexual acts would occur at that time.

[9]      L also refers to occasions on which you went out with her in the school bus. Again you manipulated the situation so that you dropped other children off first so that you were then alone with her.

[10]     She recalls that on the final occasion when something happened she was in the bus.  You dropped the other children off and then went to an area near the Port, where again there was connection between her mouth and your penis.   This last

occasion occurred in or about December 1987, when she was leaving school.  It must have occurred also towards the very end of the time when you were at the school, because you stopped working there for practical purposes at the end of the 1987 year, although you were engaged on the school staff using up your leave until May

1988.

[11]     That then forms the background against which I must determine the sentence to be imposed on you.

The approach to be taken on sentence

[12]     Before I formally begin the sentencing process, I need to indicate how I intend to approach it.  You appear for sentence on what is called historical charges. This means they occurred many years ago.  It is important, therefore, that I select the appropriate approach to take when sentencing you.

[13]     The approach that I have to take is that I am required to take into account the purposes and principles of sentencing as set out in our current Sentencing Act 2002, even though that came into force after this offending.   I must also, however, have regard to the way in which people were sentenced for offending of this type at the time  at  which  the  offences  occurred.    This  means  I  need  to  examine  earlier authorities relating to sentences passed on offenders for similar offending that occurred at around that time.  It is important that I do not adopt a sentencing regime that is in force today in relation to the length of sentence to be imposed for offending back in the 1980s.

[14]     Secondly,  as  I  am  sure  you  know,  I  am  bound  by  two  constraints  in sentencing you.   The first of these is the decision of the jury in the form of the verdicts that they have given.   I must sentence you on the basis of those verdicts, even though you do not accept that any of this offending occurred.  I am entitled to make factual findings to the extent that they are necessary for sentencing purposes, but those findings cannot be inconsistent with the verdicts that the jury reached.

[15]     Thirdly, I am required by the Sentencing Act 2002 to ensure that the sentence I impose on you is consistent with those imposed in broadly similar cases. Consistency is the key to a credible and effective justice system because it means that  everybody within  it  knows  exactly where  they stand.    It  is  not  open  to  a sentencing Judge in any given case to sentence according to his or her whim.  That would amount to an arbitrary sentencing process, and would that would lead to a rapid loss of confidence in the criminal justice system.   The way in which I shall endeavour to adhere to that principle is to examine the way in which the courts have approached similar cases, so that I ensure that the sentence that I impose on you is consistent with that approach.

Factual findings

[16]     I have been asked by your counsel to make some limited factual findings, although he accepts they must be consistent with the jury’s verdicts.  He asks me to ensure that I have regard to the evidence at the trial regarding the limited opportunity that you had to commit some of these offences.  In particular, he points to the fact that the evidence suggests that you did not work night shift very often.  Many of the allegations that the complainants made relate to events that have happened on night shift.  Your counsel suggests that it may be, with the passage of time and the tricks that the mind can play, the complainants may now have exaggerated in their own minds, or have genuinely come to believe, that more events occurred than actually was the case.

[17]     It  is  impossible,  of  course,  to  know  just  how  many  incidents  actually occurred.  The complainants cannot give any accurate indication and I can only go on their evidence.  I am really in no better position than them to make any studied decision in relation to that particular issue.

[18]     All I can say is that the jury’s verdicts mean that this offending was not isolated in nature.  It was not one or two, or even three, incidents.  The sheer number of incidents and the different occasions and locations that they encompassed mean, in my view, that the jury accepted that this kind of offending occurred relatively frequently.  I accept, as your counsel has said, that it did only occur over the course

of a year in relation to each complainant, and that means that offending occurred over just two years of the approximately seven years that you worked at the school.

[19]     One of the mysteries of this case, Mr McCardle, is how a man who was otherwise well regarded by everybody around him, including many of those who worked at the school, could do the kinds of things that the complainants said that you did.

[20]     I consider that the only rational explanation for this is that at this particular period in your life you were undergoing some form of crisis in relation to your sexual aims and ambitions.   I take that from two sources.   Firstly, from what the complainants said, supported as it is now by the jury’s verdicts.  Secondly, from the evidence of B.

[21]     Her evidence was introduced at trial for the very limited purpose of showing that you were prepared to run the risk of detection in engaging in sexual activity with Ms B in areas where you could be caught by other members of the staff or students. The activities in which you engaged with her were clearly different to those in which you engaged with the students but, nevertheless, they show that at this particular period in your life you were prepared to engage in dangerous sexual activity. Dangerous in the sense that it had at any moment the risk of exposure by other members of the staff or children who may have been walking by.  I accept that the conduct with Ms B occurred in the dormitory while the children were at school, but that did not necessarily lessen the risk of exposure.

[22]     You accepted that the activity with Ms B occurred and it, too, is inexplicable given the other good qualities that you demonstrated to everybody around you at that time.  The only conclusion, as I have said, that I can reach is that you were, at this particular stage in your life, prepared to run very real risks for your own sexual gratification.

Sentencing Act 2002

[23]     As I have said, it is important in imposing sentence that I take into account the purposes and principles of sentencing as set out in the Sentencing Act 2002.  In any  case  of  this  seriousness,  issues  of  denunciation  and  deterrence  are  to  the forefront.  The Court must also hold you accountable for what you have done and also acknowledge the harm that it has done to your victims.

[24]     Those  particular  factors  mean  that,  as  your  counsel  accepts  and  as  the authorities  show,  substantial  sentences  of  imprisonment  are  the  only  realistic outcome when a person has pleaded guilty or been found guilty on charges of this nature.

[25]     I must also take into account the effect that the offending has had on your victims.  In this case we have two sources to ascertain the effect that this offending has had on your victims.   First, we had their evidence at trial and indeed, at two trials, although I was not the trial Judge in relation to the first trial.  This evidence made it clear that what you did to them has had a devastating and long-lasting effect.

[26]     It  is  difficult  to  know  precisely the  extent  to  which  your  offending  has affected them because, as they acknowledge, they were troubled persons when they entered W School.  They had issues of their own already at that time.  Quite clearly, their lives have taken a disastrous path, as they described to you at trial.  Mr C spent much of his life in prison.   Ms L has had no ability at all to form meaningful relationships, and particularly sexual relationships, since this occurred.  I accept your counsel’s  submission  that  some  of  this  devastation  may  have  been  present,  or waiting to happen, because of the position they were in when they reached the school.   But what cannot be denied is that they firmly believe that much of the trouble that has beset them in their lives, the blame for that, lies at your feet.  They firmly believe that what they have suffered is solely due to what you did.

[27]     The victim impact reports reinforce what the victims said at trial.  They have outlined to me in great detail the extent to which your offending has affected their lives.  I do not propose to say anything further about that because they really said the

same thing during the course of the trial, and you heard what they had to say, but I have read those reports and I accept that the victims have suffered terribly as a result of what has happened here.

[28]     Also within the Sentencing Act is a requirement that I impose a sentence that is consistent with those imposed in broadly similar cases.  That is not an easy task in this case, Mr McCardle, because the circumstances of no two cases are ever the same and in the field of sexual offending that is certainly true.  Counsel have provided me with a wide variety of Court decisions and I have read them all.  That does not make it a great deal easier to ascertain just where your offending lies, but I will do my best to ensure that the sentence that I impose is consistent with relevant authorities.

[29]     I am also required to impose the least restrictive outcome that is possible.  In the case of offending such as this that really means imposing the shortest sentence that is possible having regard to the overall circumstances of the case.

Concurrent or cumulative sentences?

[30]     The way in which I propose to sentence you is to select a starting point that reflects your overall criminality in relation to all of the offending.   It might be possible for me to select a sentence in relation to the offending relating to L and then to impose a cumulative sentence in relation to C.  In a sense both sets of offending were separated  in  time and  to  some degree by circumstance.    I take  the view, however, that this is really a single set of offending in which you moved from one victim to another.  For that reason, as I have said, I propose to select a sentence that reflects  your  criminality  in  relation  to  all  of  the  offending  and  to  impose  that sentence on the lead charges of sexual violation.

[31]     I do not propose to distinguish, although it might technically be possible to do so, between the different charges of sexual violation.

[32]     In reality, the outcome is no different to that which would occur in the event that I imposed cumulative sentences.   Had I done that, I would still need to stand back and have regard to the totality of your offending in order to make sure that the

overall total sentence reflected your culpability.  So I do not see the way in which I

structure the sentence as being of any material importance.

Starting point

[33]     The first point in the formal sentencing process is to select a starting point for the sentences that must be imposed upon you.  This means the sentence that would be imposed having regard to the overall offending, but putting to one side factors that are personal to you.

[34]     The Crown says that I should select a starting point of between eight and ten years imprisonment.  Your counsel suggests that I should select a starting point of between five and six years imprisonment.

[35]     I have, as I have said, read a large number of cases.   I take the view that several of the cases referred to me by your counsel are of particular significance in your case.  I have especially been assisted by a sentencing decision of R v NGR HC Hamilton CRI 2004 419 24654, 27 October 2004.  The utility or relevance of that case arises from the fact that, it too involved a residential care worker or social worker at an institution for troubled children, in this case, boys.  In some ways his offending was worse than yours.  It involved offending that began with a boy who was at the institution and was 10 years of age.  He offended continually against that boy until the boy was 13.  He then recommenced his offending once the boy was 16. As in your case, the effect on the victim has been traumatic.   He was also found guilty, or pleaded guilty to, charges of anal intercourse, which is not a factor in your case.

[36]     In some ways the offending in R v NGR can be viewed as being more serious than yours although, of course, it involved only one victim whereas your offending involved two victims.   The sentencing Judge in that case undertook a careful sentencing analysis and concluded that a starting point of seven years imprisonment was appropriate.

[37]     One of the cases that the Judge in NGR referred to was R v Patterson [2002]

1 NZLR 245.  Again, this was, in many ways, offending that was much more serious than yours.  It related to ten separate complainants and included charges of sodomy and attempted sodomy.  The sentencing Judge selected a starting point in that case of eight years imprisonment.

[38]     Those cases, in my view, together with others provided by both counsel, provide a useful guide to the starting point that I must select.  The starting point on this case must reflect a number of factors.

[39]     The first is that it comprised offending against young children.  They were in a position where they could not be expected to deal with sexual activity of this type. You preyed upon them at a time in their life when they were particularly vulnerable.

[40]     All children are vulnerable when it comes to sexual offending.  That is why it is almost always a feature of offending of this type.  Your offending is made more serious, however, by the fact that these children were particularly vulnerable.  They had been placed within the school because of the trouble that they had encountered in the outside world and within their own families.

[41]     This led to several results.  First, you were responsible for their day to day care.  You were placed, in many ways, in the position of being their parents before and after school and at night.   They had come to that school seeking help and encouragement to reorder their lives so that they could re-enter the world and resume their lives as young children.   Instead, you preyed upon them in that position of vulnerability.

[42]     Secondly, their particular positions meant that they were not in a position to go  to  anybody  to  complain.    One  of  the  features  of  this  trial  was  that  the complainants maintained that they did not tell anybody because they had nobody to talk to.  They could not talk to their parents because of the difficulties that they were already undergoing with their parents.  Now that lent a special air of vulnerability to their positions.  It also involves, for the same reasons, a breach of trust.

[43]     Next, there is the fact that this did not involve one-off offending.  It involved offending over a lengthy period.  Twelve months might not seem a long period to an adult, but to a child living in a residential school such as this where this type of offending was occurring reasonably frequently, it must have seemed an eternity.

[44]     There is also the fact that it occurred in a variety of ways.  That is reflected by the number of charges and the different forms that they take and the different locations.

[45]     All  of  those  factors  mean  that  your  case  presents  worrying  and  serious features that must be taken into account in passing sentence.   Added to that, of course, is the effect that this has had on the victims.

[46]     In some respects your offending was less serious than that in NGR.  Certainly the actual offending was not as serious.  On the other hand, as I have said, it involved two victims.

[47]     Weighing all of those factors in the balance, I have reached the conclusion that an appropriate starting point in relation to all of your offending is one of seven years imprisonment.

Aggravating factors

[48]     There are no aggravating factors that operate to increase the sentence that I have selected.  I need only to ascertain whether or not there are mitigating factors personal to you that I need to take into account to reduce the sentence that I have selected.

Mitigating factors

[49]     You appear for sentence at the age of 59 years.  You have led a blameless life, other than this offending.   In many ways you have been a pillar of the community.  Even during your time at W School, others who gave evidence at the trial and who have provided references today, spoke highly of your performance in many ways.  You were obviously a well-liked member of the staff at the school.

[50]     When  you  left  W  School,  you  did  not  go  back  into  social  work  or  the education system.  Rather, you went into the business world.  For the last 17 years you have held positions of responsibility at Auckland International Airport.  For the last two years you have held down the extremely and responsible job of Airside Operations Manager.  Your employer, knowing of the allegations against you, stood by you throughout the trial and until the verdict.  And, of course, you have now lost your career as a result of your actions.

[51]     Your standing within the community is reflected by the large number of people that attended Court every day during the trial.  There are a large number here today to support you in your hour of need.

[52]     I have been inundated  with a vast array of heartfelt, sincere and careful references  from  a  large  number  of  well-respected  members  of  the  community. Those people are here today to support you.  They will support your wife and family throughout the coming years.  You are very lucky, Mr McCardle, to have that level of support and you are going to need it for what lies ahead.

[53]     Most of all, Mr McCardle, you have a loving wife and daughter who are now in an extraordinarily difficult position because of what you have done.   They will probably suffer the most as a result of your actions.   Thankfully, they have the support of a very strong network of friends.

[54]     I cannot give you credit for remorse because, as your counsel makes plain, you do not accept the verdicts and you do not accept that any of this offending ever occurred.  Neither can I give you credit for any guilty pleas.  The most that I can do is give you credit for the fact that you have led, other than this offending, a blameless life and have been a person of real standing in our community.

[55]     Credit cannot be given when a person simply is not caught whilst offending for a lengthy period.  That would not be appropriate.  But when you are sentencing a person who committed offences some 20 odd years ago, you are, in a sense, as the authorities say, sentencing a different person.   You left the school environment. There is no suggestion that you have ever been involved in anything like this since

1987.  I take the view, as I have said, that this was some kind of aberration in an otherwise exemplary life.

[56]     I have reviewed the authorities and the extent to which a discount can be given for this factor.  I propose to adopt the same approach as in NGR and reduce your sentence by one year to reflect this factor.

Sentence

[57]     On each of the charges of sexual violation by unlawful sexual connection, you are sentenced to six years imprisonment.

[58]     On each of the charges of indecent assault you are sentenced to three years imprisonment.

[59]     All sentences are to be served concurrently. [60]        Stand down.

Suppression issues

[61]     I just remind the Press that there is a suppression order obviously in relation to the complainants, and also in relation to A.

Lang J