R v O'Reilly

[2013] NZHC 741

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2011-035-1929

CRI 2011-035-748 [2013] NZHC 741

THE QUEEN

v

KENNETH ROBERT O'REILLY

Hearing:         12 April 2013

Counsel:         K S Grau with D R La Hood for Crown

I M Antunovic with J K Blathwayt for Prisoner

Sentence:       12 April 2013

SENTENCING NOTES OF THE HON JUSTICE KÓS

[1]      Mr O’Reilly, you can remain seated for the moment.

[2]      You were found guilty in two separate trials by jury of one representative count of sodomy[1]  against a young boy and three counts of indecent assault.[2]    The latter three offences occurred within the last decade, while the first offence was

[1] Crimes Act 1961, s 142(1)(c).

[2] Crimes Act 1961, s 135.

committed some fifty years ago.  I am sentencing you today on all four convictions.

R v O'REILLY HC WN CRI 2011-035-1929 [12 April 2013]

[3]      You, Mr O’Reilly, are a paedophile.   You have committed sexual offences against children and young adults now for over a period of fifty years.  All of your victims are young people whose trust you have obtained by feigned kindness, compassion or common interest, and then abused.

[4]      That your apparent compassion was feigned is demonstrated by your conduct since your present crimes were detected.  You denied the offending altogether.  You compelled your victims to give evidence.  You gave evidence on oath denying your offending.  By implication you said that your victims were liars.  The jury verdicts demonstrate conclusively, beyond reasonable doubt, that it was you, rather than they, who was lying.

Background to the offending

Sodomy

[5]      The offending in relation to the sodomy count took place between 1 January

1962 and 5 April 1966.  You knew the victim, to whom I give in these sentencing notes the pseudonym “Peter”, because he was a distant family member who you met from time to time when visiting mutual relatives.  During the period of offending, Peter was aged between just seven and eleven years old.  You were a decade older: between 17 and 21 years old.

[6]      The jury found that you took little Peter out to a shed, removed his clothes, and sodomised him.  The number of times this occurred is not altogether clear, but it happened at least three times in the relevant period.  Peter was scared of you and he did not understand what was happening.

[7]      The abuse ended when he and his family moved away.   He did not tell anybody about what had happened until September 2011.

Indecent assault

[8]      The  three  indecent  assaults  relate  to  offending  that  occurred  between

1 January 2006 and 31 December 2008.  The victim, who I will call “Matthew”, was between 19 and 21 years old during this period. You were in your 60s. You met him through your shared interest in the Wairarapa Railway Restoration Society Inc.  You were the President of that body.  Matthew was a youthful looking, shy young man who has been diagnosed as exhibiting Asperger’s Syndrome.  He was obsessed with trains.

[9]      The first occasion occurred in the Carterton Railway Station carpenters’ workshop, which was part of the Society’s premises.  You restrained Matthew, you undid the zip on his pants and you began stroking his private parts.   Despite his attempts to break free, you continued until he ejaculated.

[10]     On  the  second  occasion,  you  called  Matthew  to  your  house  to  fix  your computer.  Instead of giving up the computer chair, you told him to sit on your lap while he fixed the computer.  He declined but you pulled him onto your lap, and you restrained him when he tried to stand up.  You stroked and masturbated Matthew’s private parts, working your way inside his clothing over a period of several minutes.

[11]     Continuing  the  same  incident,  you  then  exposed  your  private  parts  to Matthew and alternated between masturbating him and yourself.  You took his hand and forced him to rub your private parts until he escaped your grip.

[12]     By the end of 2008, now aged 21, Matthew had become more assertive and he no longer associated with you.

Victim Impact

[13]     The impact on your victims has been very significant.

[14]     Peter, a little boy when you abused him, describes what you did to him as

having “trashed [his] whole world”.  Bearing the burden of your abuse inhibited his

ability to form relationships.  It made him afraid of having children, lest they befall the same fate as he had.  He became an extremely anxious child.  He often soiled himself at school, prompting him to leave school at the age of 14.  By your refusing to take responsibility for your actions, Peter was forced to endure a stressful and upsetting Court process while himself battling cancer.  That stress has taken its toll on him, contributing to further debilitating illness.

[15]     As to Matthew he was frightened, overpowered and overwhelmed by your offending.  He was both socially and sexually naïve at the time, and vulnerable to being exploited by those in positions of power such as yourself.  It made him feel sick and it severely dented his self-esteem.   He struggled to cope with it and he thought he would not be believed if he complained.  Your abuse left Matthew unable to focus on the courses he was studying, many of which he failed while you were abusing him.    His  grades  have improved  markedly since he revealed  what  had happened.   He could not bear to see you when he was giving evidence, which he found unpleasant and unnerving.

Personal circumstances, pre-sentence report and prior offending

[16]     I turn to your personal circumstances.  You are 68 years of age.  You have been married for over 40 years. You do not have any drug or alcohol problems. You suffer from diabetes, gout and high blood pressure.

[17]     You have two previous convictions for sodomy of a ten year old boy in 1984. You exploited the trust that his parents placed in you.  On that occasion you admitted your guilt and you pleaded guilty in 1985.   You received eight months’ periodic detention. That sentence appears to be one of almost astonishing leniency.

[18]     You also have two previous convictions for indecent assault of a young girl aged just 6 to 12 years between 1982 and 1988.  For that you were sentenced to 2 years’ imprisonment in 2011.   You were close friends with her parents and you abused the trust that they reposed in you.  One of the offences you committed against her occurred soon after you were sentenced to periodic detention on the earlier

sodomy charge in 1985.   You put that victim through a trial, you gave self- exculpatory evidence and that was disbelieved by the jury.

[19]     The evidence before me shows that you were born into a large family which experienced a culture of pervasive sexual abuse.  You say you yourself were not the victim of any childhood sexual offending.

[20]     Despite the verdicts entered against you, you continue to deny that your own offending occurred, preferring to claim that members of your family and the police have a vendetta against you, and are using you as a scapegoat for the offending of others.  In that regard, Mr O’Reilly, you are I think seriously deluded.

[21]     You have been heavily involved in community-based activities, such as the Wairarapa  Railway Restoration  Society  and  the  Masterton  Citizens  Band  Radio Club.   You were President of the former body for 17 years.   It is clear from the evidence given to me, however, that your participation in these community groups is not altogether selfless community service.   Rather you seek, and then misuse, the status given  to  you  by high  office.    Such  certainly was  the case in  relation  to Matthew.    You  used  the  power  of  your  presidential  position,  and  Matthew’s obsession with trains, to gain control over him for your sexually predatory purposes.

[22]     The pre-sentence reporter describes you as having a high risk of reoffending. You are unmotivated to address the causes of your offending.  You deny that you are sexually attracted to young people.   You abuse positions of power that give you access to vulnerable young people.  Age has not proved a deterrent to your sexual offending. You continue to deny your guilt.

[23]     The psychological assessments prepared for the Court provide limited insight because of your intransigent attitude towards accepting your offending.  In relation to your 1985 conviction for sodomy, you admitted that you are bisexual and wanted to play with a man or a boy’s penis.   You now deny that.   Because you will not acknowledge  your  behaviour,  you  will  not  be  accepted  into  any  treatment programme for sexual offenders.  You have no empathy for your victims and you struggle to understand their perspective.  Instead you focus on the impact that their

complaints have had on your life.  You and your wife have an insular relationship. You are both estranged from your families and you are reliant on each other.  The psychologist assessed you as having a medium-high risk of serious sexual re- offending against prepubescent girls and boys on the ASR Scale and moderate risk using the STABLE 2007 method.   She concluded you have a clear proclivity and predilection for sexual offending against children and young persons.

[24]     You were also assessed by psychiatrist Dr Barry-Walsh.  He concluded that you pose at least a moderate risk of reoffending, using the SVR-20  method of analysis.  He notes that as you age further, the risk of reoffending may reduce.

Purposes and principles of sentencing

[25]     I am required as sentencing Judge by the Sentencing Act 2002 to keep in mind a number of purposes and principles of sentencing.  Section 7 requires me to have regard to the need to hold you accountable for the harm your offending has produced,   and   the   need   to   promote   a   sense   of   responsibility   for,   and acknowledgement of, that harm.  I need to denounce your conduct, which I do here today, and I need to deter you and others like you from committing the same or similar offences in the future.

[26]     In  terms of s 8 principles,  I must take into account the gravity of  your offending,  including  your  degree  of  culpability.     I  must  have  regard  to  the seriousness of the types of your offences committed by comparison to other types of offending, and by the maximum penalties prescribed for each.  I must also consider the general desirability of consistency in sentencing.   And then the statute says I must impose the least restrictive outcome that is appropriate to your circumstances, including your personal circumstances.

Lead charge: sodomy

[27]     The lead charge for sentencing purposes is  your sodomy conviction.    In selecting a starting point for a determinate sentence, I begin by saying to you that I am not going to impose a sentence of preventive detention, for reasons that I will

explain  later.    But,  in  short,  in  my view a lengthy but  determinate sentence is appropriate to your offending on this occasion.

[28]     I am mindful of the Court of Appeal’s observation in R v R[3] that a sentencing Judge confronted with a case of historical sexual abuse should fix a starting point sentence based upon sentencing levels of the relevant time.

[3] R v R CA244/04, 2 November 2004 at [22].

[29]     The  Crown  submits  that  a  starting  point  of  five  years  to  six  years  is appropriate, having regard to comparable and contemporaneous cases.  The defence submits that that is too high a starting point.

[30]     I have considered the comparable cases.  I have considered the case of R v Peterson[4] where a starting point of seven years was adopted for sodomy committed in 1969.  However the offender in that case was charged under s 142(1)(b) of the Crimes Act 1961, which carried a maximum sentence of 14 years’ imprisonment.  In H v R[5] the offender sodomised his son (aged under 16) multiple times between 1976 and  1979.    The  Court  of Appeal  also  adopted  a  starting  point  of  seven  years’ imprisonment.  But that too was a case where the higher maximum under s 142(1)(b) applied.

[4] R v Peterson HC Auckland T032189, 17 November 2004.

[5] H v R CA512/93, 15 March 1994.

[31]     Because for all relevant purposes, Mr O’Reilly, you are to be regarded as under 21 at the time of your sodomy offending, a maximum of seven years’ imprisonment applies to you under s 142(1)(c).  More helpfully, I am guided by the passage in R v H[6]  where the Court of Appeal recorded that in England, contemporaneously, a starting point of three to five years for sodomisation of victims under 16 years of age was appropriate.

[6] R v H (an accused) [1986] 2 NZLR 755 at 757.

[32]     You turned 21 at the time the offending finished, which places you in the upper end of s 141(2)(c). The starting point in this case must also reflect the fact that

you sodomised the victim not just once, but three times.

[33]     I will adopt therefore a starting point of five years’ imprisonment before

considering personal mitigating and aggravating factors.

Other charges: indecent assault

[34]     I turn now to the indecent assault convictions.   Your indecent assaults on Matthew involved sustained direct skin-to-skin contact, physical restraint and were perpetrated against a vulnerable victim while in a position of power.

[35]     You were sentenced on two charges of indecent assault in 2011, one of which involved touching over clothing, and another which involved skin-to-skin contact. In that case, the Judge adopted a starting point of 18 months’ imprisonment[7]  which was upheld on appeal.[8]

[7] R v O’Reilly DC Wellington CRI-2009-035-2395, 6 May 2011.

[8] O’Reilly v R [2011] NZCA 541 at [51].

[36]     This latest offending in my view warrants a starting point of two  years’

imprisonment.

Aggravating factors: prior convictions

[37]     I turn next to aggravating factors, in particular relevant prior convictions.

[38]     As  far  as  the  sodomy  charge  is  concerned,  the  previous  conviction  is historical, and it post-dated the present offending.   I am not going to uplift your sodomy sentence for prior convictions.

[39]     As to your indecent assault offending on Matthew between 2006 and 2008, at that time you had prior convictions for sodomising a young boy.  And you also had committed indecent assault against a young girl, although you were yet to be tried for that.  But you had been tried in the late 1990s on 16 charges of sexual offending against a third child.  Three convictions were entered on that, but they were set aside by the Court of Appeal on the basis of verdict inconsistency.  Although that is not a prior conviction, it is relevant to the context in which you chose in 2006 to then prey

upon Matthew.

[40]     In these circumstances, I take the view that it is necessary to uplift your sentence on the indecent assault charges to reflect other like offending committed by you, in reasonable proximity to your present offending, to reflect a clear failure of deterrence from reoffending.  The uplift will be 25 per cent to your indecent assault sentence, that is an uplift of six months will apply.

[41]     Therefore on the indecent assault charges you will serve a total of two and a

half years’ imprisonment.

[42]     Because of the physical and temporal distance from your other offending, that sentence will be cumulative to – that is, in addition to – the five years that I sentence you to on the sodomy charge.  I note that your counsel, Mr Antunovic, has accepted both in his written and his oral submissions that this is a proper case for cumulative sentencing.   I am satisfied from the point of view of totality that that does not produce an outcome disproportionate to the gravity of your offending as a whole.

Mitigating factors

[43]     I turn to mitigating factors. There are none. [44]           Notably, you exhibit no remorse whatever.

[45]     I have considered the fact that you are now aged 68 and have some ailments. They do not warrant any sentence reduction.

[46]     I am not prepared to sentence you on the 1960s offending as a first offender. In a purely chronological sense that may be true.   But in my view this has to be considered in the order in which your offending came to light, for the 1984 sentence must have allowed you credit for then being a first offender.  You cannot receive that credit twice.

Preventive detention

[47]     I have said previously, Mr O’Reilly, that I am not going to impose preventive detention in this case.

[48]     There are five reasons for my not doing so.

[49]     First, preventive detention is not applicable to your conviction for sodomising Peter in the early 1960s.  In combination s 25(g) of the New Zealand Bill of Rights Act 1990 and s 24 of the Criminal Justice Act 1954 (which was then applicable) mean that preventive detention is not an available sentence in relation to that offending.

[50]     Secondly, had you been convicted of more serious charges (again involving sodomy) against Matthew, I would likely have considered this an appropriate case for preventive detention.  But the fact remains that you were convicted only at your second trial of three charges of indecent assault.  I do not lessen the seriousness of those charges by saying this, but I consider them of an altogether different degree of magnitude to your sodomy conviction, as is reflected in the different sentences that I have imposed.

[51]     Thirdly it is true that you exhibit a pattern of serious sexual offending against young people, have caused serious harm to your community and you have failed to address the causes of your offending.  It is arguable whether the information I have before me indicates a tendency to commit serious offences in the future.  You will be at least 71  years old before  you are eligible for parole,  and that may naturally diminish your appetite for sexual offending.   Dr Barry-Walsh notes also that you may  bring  yourself  to  accept  your  offending  if  you  unsuccessfully  exhaust  all avenues  of appeal,  thereby enabling  a rehabilitative process  to  begin.   You  are however assessed as having at least a moderate risk of reoffending.

[52]     Fourthly,  however,  I  am  not  satisfied,  as  I  must  be  in  order  to  impose preventive detention, that you are “likely to commit another qualifying sexual offence” if you are released at your full sentence expiry date.   As I am going to sentence you on a cumulative basis, you will be then at least 75 years of age.  One of the hallmarks of your offending is that it has been against young people with whom you have formed close relationships, through their families or the community.  Yours are not random victims.  The publicity given to your cumulative offending will and should cause you to be shunned by the community and by any connections of yours

who have young children.   I cannot conceive that the community will ever again trust you to have contact with young people.   In these circumstances a lengthy determinate sentence, which is the result of the sentencing approach I have taken, is also required by statute because that will provide adequate protection for society.

[53]     Fifthly, and finally, if that is in doubt at all then it appears to me, following the discussions I have had with counsel this morning, that you would be an eligible offender for the imposition of an extended supervision order under s 107B of the Parole Act 2002 by virtue of ss 107B(2A) and (2B) and 107C(2).  That is of course not a matter for consideration at this time.  It merely means that a future point, and in particular if you have not made progress in terms of rehabilitation during your prison sentence, the Department of Corrections may make application for the imposition of an extended supervision order on you.  That is an order which can run for up to ten years, and a Court will deal with that application at that time if it is made.  That is the fifth and final reason why I have not in this case imposed preventive detention on you.

Minimum Period of Imprisonment

[54]     Against   that   background,   I   will   not   impose   a   minimum   period   of imprisonment.  Rather, I place my trust in the Parole Board to make an appropriate assessment  of  your  circumstances  at  the  relevant  time  in  the  future.   Absent  a genuine  acceptance  of  your  offending,  and  a  reduction  in  the  risk  of  your reoffending, you may well serve your full sentence.

Conclusion

[55]     Stand please.

[56]     On the charge of sodomy I sentence you to five years’ imprisonment.

[57]     On the charges of indecent assault I sentence you to two and a half years’

imprisonment on each charge.

[58]     These sentences are to be served cumulatively.

[59]     Accordingly Mr O’Reilly, you are sentenced to a total of seven and a half

years’ imprisonment. [60]       Stand down.

Stephen Kós J

Solicitors:

Crown Solicitor, Wellington

WCM Legal, Carterton for Prisoner