R v Olliver

[2016] NZHC 2547

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-009-000810 [2016] NZHC 2547

THE QUEEN

v

THOMAS OLLIVER

Hearing:	25 October 2016
Counsel:	C J Boshier for the Crown P J Shamy for the Defendant
Date:	25 October 2016

SENTENCING REMARKS OF NATION J

[1]      Mr Olliver, on the 26 September this year, a jury found you guilty of three charges of doing an indecent act on a child under the age of 12.  The charges were described by the Crown as an indecent assault but in each instance the offence, under s 132(3) of the Crimes Act 1961, was committed with you doing an indecent act.

[2]      The first charge involved a young girl, “S”, who was then aged 8.  During

2014, you were living in a caravan parked on a rural property where she lived in the main home with her mother.  The girl came to your caravan.  She was watching a movie with you on your bed.  While doing that, you touched her on the upper thigh part of her body.   You tried to put your hand down the front of her pants.   You squeezed her buttocks.  You touched her in the vaginal area but I am proceeding on the basis this was on top of her clothing.  She said you tried to get into her clothes

but she rolled over.

R v OLLIVER [2016] NZHC 2547 [25 October 2016]

[3]      When S was questioned by your lawyer, she said she went over to where you were staying a few times.  She talked about some other physical contact she had with you, wriggling in what she said was referred to as the pretzel and that she would be involved in laughing and tickling.  S remembered that as being something different from the actions which led to your being found guilty of doing an indecent act.  She was not challenged over the particular touching which the charge was based on.  The jury obviously found those actions to have been what right-thinking people in the community would regard as indecent and that you knew they were of that sort and not just innocent or accidental playful contact with a younger girl.

[4]      You were also found guilty of doing an indecent act with “T”.  She was aged

9.  In about November 2014, you were living with her mother.  You were there for about a month.   She described lying on her mother’s bed with you, watching TV. She talked about you touching her in ways that made her feel awkward, rubbing your fingers along her abdominal area and down her back and squeezing her buttocks, running your hands through her hair, kissing her head and stuff like that and, at the same time as the touching on her bottom occurred, also of your trying to put your hand down her pants and of trying to lift the elastic bit on her pyjamas, but of your rolling away quickly when her mother came into the room.

[5]      You were also found guilty of doing an indecent act in connection with an incident which occurred after school.   It began with her going into her mother’s room and you patting the bed to get her to be close to you and asking for a cuddle and then playing with her hair, kissing her on the cheek and on the ear, kissing her as if you were trying to bite her softly with your teeth, touching her on her buttocks, rubbing your finger along her stomach and back, rubbing your fingers along the bottom of her back and moving slowly up and, again, of you trying to put your hand down her pants.  At times, she was on top of you and you had your hands wrapped around her.  She talked of rolling over because it felt weird.

[6]      In response to questions from Mr Shamy, T said you had been friendly to her, that you used to give her back-rubs every now and then, you would have play fights and she also liked you brushing her hair, and that you would make her feel better about yourself by telling her that she had lovely hands and was a lovely person.  The

touching which she described, which the Crown relied on in bringing this charge of doing an indecent act, was different.  It was also physical contact which T said made her feel awkward.  Again, she was not challenged as to whether what she had said you did to her was true.

[7]      So, you have been found guilty of committing an indecent act with a young girl on three different occasions and with two different girls.

[8]      I  know,  from  the  probation  officer’s  report  that  you  deny  that  you  did anything wrong, that you say these convictions result from an ex-partner seeking retribution and the report did say that you expressed no empathy for the victims and took no responsibility for what happened.

[9]      I need to say to  you that these young girls knew instinctively that  your actions, which led to the jury finding you guilty, were different and not right.  They were actions which a 39 year old man must have known had to be avoided when alone with a young girl.  They were actions which these young girls did not like and which made them feel uncomfortable, even though at the time they both regarded you as a friend.

[10]     They were also actions which were potentially dangerous for both you and them.  Had they not acted as they did to, in some way, rebuff your attempts to put your hand down the front of their pants, the touching could have been much worse than it was.   Had they tolerated what you were doing or had the acts not been brought to an end through others being around,  you could have found  yourself involved in a relationship which was totally inappropriate and criminal.   It is of concern that you do not acknowledge this, even after a jury has found you guilty of criminal offending.

[11]     I must first arrive at an appropriate starting point sentence for the offending. In that regard, it is significant that you are charged with offending involving two girls under the age of 12.  The maximum sentence for such offending is 10 years’ imprisonment, not the seven years that applies with children over the age of 12 but under the age of 16.  Because of their age, these children were vulnerable.  In both

instances, you were trusted by a parent and by these children to be safe with them. The indecent acts of which you have been found guilty are the sort of acts for which a sentence of imprisonment is normally regarded as necessary and appropriate.

[12]     With this offending, the purposes of holding you accountable, denunciation and deterrence have to be a priority.

[13]     On the other hand, the acts were not as grossly intrusive as in a number of other cases the courts have had to deal with.  The contact was not prolonged.  While it left the girls feeling awkward and confused, because of the few occasions on which it occurred, it should not result in long term serious psychological damage, although it has left them feeling nervous and distrustful of other situations that they might be in.  I note the submission that was made for the Crown that, with this sort of offending, sometimes the consequences emerge later on and there will be a challenge for these girls, and more importantly their mothers, to ensure that what happened is kept in perspective and in a sense that it is not made all much worse than it already is.  I accept however that, having to deal with all the consequences of this offending, including the Court process, may have been of itself very disturbing and distressing for these young girls, almost as serious as the actual offending itself, but those are not consequences for which I can add something to your sentence for.

[14]     There are no mitigating circumstances relating to you personally.  You do not have previous convictions for this sort of offending but, with this offending, you have shown a lack of respect for other people, in this instance two young girls.  You have shown disdain for what the community considers to be proper standards of behaviour.   That sort of attitude is also apparent in your previous convictions for assault with intent to injure, cruelty and ill-treatment of an animal, behaving in a threatening  manner,  wilfully setting  fire  to  a  partner’s  property,  not  to  mention serious driving offences including operating a vehicle recklessly and alcohol-related driving offences.  Your risk of reoffending and causing harm to others is assessed as high.

[15]     Your counsel submitted that a starting point of between 12 to 15 months’

imprisonment might be appropriate, with a minimal uplift for previous offending.

The Crown submitted an appropriate starting point for the offending against T would be two years, with a further one year uplift for the offending involving S.

[16]     Because you were found guilty of two separate offences with T, I am treating that as the lead offending.

[17]     There is no tariff for this type of offending, primarily because the seriousness of the offending depends so much on the particular facts of the case.   I have had regard to the sentences which have been imposed or considered in other cases which counsel have referred me to.

[18]     I  consider  it  appropriate  to  adopt  concurrent  sentences  for  the  charges involving T because the offences are of a similar kind and are a connected series of offences. The sentence on the charge involving S will be cumulative.

[19]     On the two charges, CRN 15009001052 and 15009001053, involving T, I adopt a starting point of 16 months’ imprisonment, with an uplift on account of your previous criminal offending of four months.  On each charge you are convicted and sentenced to imprisonment for 20 months. Those sentences to be concurrent.

[20]     On charge CRN 15009001050, involving S, you are convicted and sentenced to imprisonment for nine months, cumulative on the sentences imposed on the other two charges.

[21]     Your overall sentence for this offending is thus two years and five months.

[22]     The offences for which you have now been convicted are qualifying offences under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016. This Act has recently come into force and I must give effect to it.

[23]     Because you have been sentenced to imprisonment, you will automatically be a registrable offender on the Child Sex Offender Register and you must comply with the reporting obligations of the Act.   This means that your name and information relevant  to  you  and  your  offending  will  be  placed  on  the  Child  Sex  Offender Register.  It also means you have initial and ongoing reporting obligations under the

Act.   A Registrar of this  Court  will give  you  written notice of those  reporting obligations and the penalties for failing to comply with those obligations.   It is an offence to fail to comply with your reporting obligations without reasonable excuse or to provide false or misleading information.   It is also an offence to apply to register a change of your name without first having obtained the written approval of the Commissioner of Police.

[24]     In  your  case,  your  reporting  obligations  begin  when  you  cease  to  be  in custody in relation to these qualifying offences.   You must comply with these reporting obligations for 15 years. You will remain on the register for the duration of your reporting period, including any period during which your reporting obligations are suspended.

[25]     So, you will receive a written notice from the Registrar telling you more about that.

[26]     Mr Olliver, I need to give you a particular warning because of the offences that you have been convicted for.  [Judge gives First Strike Warning.]

[27]     That completes the remarks I need to make on sentencing.  You may stand down.

Solicitors:

Raymond Donnelly & Co., Christchurch

P J Shamy, Barrister, Christchurch.