R v Orchiston
[2020] NZHC 224
•20 February 2020
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY SS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011. IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2019-020-1297
[2020] NZHC 224
THE QUEEN v
WARWICK ROWORTH ORCHISTON
Hearing: 20 February 2020 Counsel:
S B Manning for Crown M M Dixon for Defendant
Date:
20 February 2020
SENTENCING OF CLARK J
Introduction
[1] Mr Orchiston, — you can stay seated — you appear for sentence this morning having pleaded guilty to two charges of sexual violation by unlawful sexual connection1 and 21 charges of an indecent act on a child under 12.2
[2] A charge of sexual violation carries a maximum of 20 years’ imprisonment. A charge of an indecent act carries a maximum sentence of 10 years’ imprisonment.
1 Crimes Act 1961, s 128(1)(b) and s 128B.
2 Section 132(3).
R v ORCHISTON [2020] NZHC 224 [20 February 2020]
[3] The crown seeks a sentence of preventive detention. That is the main issue for me today — whether you should receive a finite sentence or a sentence of preventive detention.
Three strikes warning
[4] Before dealing with sentencing, there is a preliminary matter. The offences you have committed fall within the definition of a “serious violent offence” in the Sentencing Act 2002.3 The Sentencing Act requires the Court to warn you of the consequence of committing another serious violent offence. Normally the warning is given when the offender is convicted.4 As that did not happen I give the warning today.
[5] You have not previously been given a warning so this is your first. It is a stage one warning:
(a)If you are convicted of any serious violent offence, except murder, committed after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.
(b)If you are convicted of murder committed after this warning, you will be sentenced to life imprisonment, and serve that sentence without the possibility of parole unless it would be manifestly unjust to do so. In that event the Judge must sentence you to a minimum term of imprisonment.
[6] This warning will be given to you in writing and your lawyer can explain it to you.
[7]I now move to your offending.
3 Sentencing Act 2002, s 86A.
4 Section 86B.
Your offending
[8] The offending took place during 2018 — possibly into 2019. There are four victims. At the time of the offending one was aged five, one was aged nine, and one was between nine and 10 and the fourth was 11 to 12.
[9] You befriended them, and very quickly gained the trust of their parents. Within a short space of time you were treating the children to trips to McDonalds, giving them money, and buying them clothing and other treats.
[10] You gained the trust of the families to the extent that your offers to take the girls away for holidays and excursions, including camping trips, were accepted.
[11] You offered to give the parents some respite by having the children stay overnight at your home on numerous occasions. They would generally stay overnight together in the lounge where you put mattresses but there was an occasion when one of the girls stayed with you on her own.
[12] You took advantage of the time alone with your victims to perform indecent acts on them. You told them not to tell their parents and you bribed them with pocket money and treats in exchange for keeping quiet.
[13] On one occasion one of the girls woke during the night to you pushing your fingers in and out of her vagina.
[14] On another occasion, a different victim was waiting outside for you to unlock the door to your home when the two of you had returned from the shops. You came up behind her with the door key and pushed it through her clothes, into her anus.
[15]The two sexual violation charges arise from these two events.
[16] I do not propose to go into the detail of the offending against each child underlying the indecency charges. It is sufficient for today’s purposes to adopt the Crown’s summarised list of the range of sexual touching and behaviours described in the summary of facts to which you have pleaded guilty.
·pulling the victim’s pants down
·swiping your hand from her buttocks to her crotch area
·being naked in the pool and piggy-backing on the victim who could feel your genitals rubbing against her back
·carrying out a “humping” movement while lying on top of her
·touching her “private parts”, making them sore
·rubbing her crotch area
·lying on top of her naked
·feeling his genitals against her crotch
·exposing your penis
·squeezing her buttocks
·kissing her on the lips
·rubbing her backside
·“humping” her ( crotch to crotch) while clothed
·looking at her “private parts” after pulling her pants down
[17] On an occasion when one of the victims woke to find you lying on top of her naked and pushing your crotch into her clothed area she told you to get off. She began crying and said she wanted to go home but you told her she had to stay.
Victim Impact Statements
[18] A victim impact statement has been provided by three of the victims. The five year old’s grandmother has provided a statement on her behalf. As one would expect the impact of your offending has been greater on the older victims whose understanding of what you have done to them is greater than the understanding of the
five year old. The legacy of your offending for one of the older victims is her fear of other adults. She is afraid to trust adults and cries whenever she thinks about what you have done to her. Another describes feeling helpless in the face of your offending, but she was too scared to tell anyone.
Provisional advice to courts
[19] The Department of Corrections has prepared a report. It records your strong denial of the offending or that you have created any victims. You claimed to the report writer you provided the victims with “wonderful experiences” and “memories” and you stated you couldn’t “possibly believe they would feel badly at all”. You made derogatory comments about the parents.
[20] The report offers some insight into your reasons for pleading guilty while continuing to deny your offending. When the report writer asked you about your guilty plea you ruminated that the charges were perhaps the balancing of the full life you have had. And you speculated as to whether imprisonment was the price to pay for having had such a full life.
[21] The report notes that your consistent denial of any inappropriate behaviour towards children, or causing harm, means you will not meet the criteria for targeted treatment for people who sexually offend against children. Treatment would be offered to you through psychological services if your attitude changed. The PAC report assesses you to be at high-risk of reoffending and posing a high-risk of harm to your victims primarily as a result of the fact that:
·your history shows you are indiscriminate when it comes to victims;
·you are adept at extensive grooming of families and victims, gaining their trust and friendship;
·and age cannot mitigate your risk as the current offending is not historic.
[22] You described to the report writer your excellent physical health and you attribute this to your lifestyle choices and the outdoor expeditions you have undertaken.
Personal circumstances
[23] You are 78 years old. You have three adult children but limited contact with only one of them.
[24] You have 13 previous convictions, all involving sexual offending. Ten of the charges involved children under the age of 12. The remaining three were in relation to girls between 12 and 16. You were sentenced to four and a half years’ imprisonment and when released from prison you were subject to a five year extended supervision order. That order expired in April 2013.
[25] You have not undertaken any form of treatment or rehabilitation as you deny your actions. Instead, you accuse one of the victims of making up allegations against you.
Starting point
[26] I turn now to assess a starting point for your sentence. The offending is serious. That is reflected in the 20-year maximum term of imprisonment and the presumption of imprisonment.5
[27] I propose to take as the lead charge, the charge of unlawful sexual connection by digital penetration. In a guideline judgment for sexual offending, the Court of Appeal established three bands of offending for unlawful sexual connection.6 Mr Dixon submits the appropriate starting point is four and a half years’ imprisonment. Mr Manning submits the starting point should be five years. The top end of band one, which is five years overlaps with the lower end of band two, which is four years.
5 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [77].
6 R v AM (CA27/2009), above n 5.
[28] In setting the starting point I take into account the following factors which I consider aggravate your offending:
(a)Planning and premeditation7 You carefully planned opportunities for offending by building trust with the victims and their families over a period of time getting to the stage where the families permitted you to leave their children alone in your sole care. You groomed the victims by treating them to trips, special food and gifting them books and toys. You then took advantage of the time you had created to be alone with them to perform indecencies on and before your victims who were too young to realise the significance of your actions.
(b)Vulnerability:8 Your victims were particularly vulnerable because of their youth. Offences against children are inevitably regarded more seriously than similar offences against an adult. In any event, you could not have committed some of the indecencies against any sentient adult. You exploited their vulnerability and did so deliberately.
(c)Breach of trust:9 The law recognises that breaches of trust may arise beyond the familial setting where, for example, a person such as you has assumed some responsibility in relation to the victim.
(d)Scale of offending:10 You offended against not just one but multiple victims. And the abuse was not just one incident but repeated over many months — possibly up to a year.
[29] The factors that I have identified as aggravating your offending place the offending at the lower end of band two. Band two is appropriate for offending which the Court of Appeal has described as being of “relatively moderate seriousness” and encompasses cases having two or three factors increasing culpability to a moderate
7 Section 9(1)(i) and R v AM, above n 5, at [37].
8 Sentencing Act, s 9(1)(g) and R v AM, above n 5, at [42].
9 Section 9(1)(f) and R v AM, above n 5, at [50].
10 Section 9(1)(j) and R v AM, above n 5, at [47]–[49].
degree.11 While the offending to which the lead charge relates was relatively brief it must be seen in the context of multiple indecent acts over a period of up to 12 months. Your culpability is to be understood in that context.
[30] In reaching a starting point I have also considered the cases referred to in the Court of Appeal’s guideline judgment.12 Those cases are summarised in the annexure to my sentencing.
[31]I have also considered the cases which counsel have cited.
[32] In light of the relevant authorities and the aggravating factors that I have identified, I adopt a starting point of five and a half years imprisonment. The similarities with three particular cases, (Takamore, Rua and R v H) are in the planning and premeditation; the similarly-aged victims; the significant element of breach of trust; and the lead offence of sexual violation with additional indecent assault and indecency offending.
Uplifts
[33] The second charge of sexual violation by unlawful sexual connection warrants a separate uplift. While the incident was brief and through the victim’s clothes, it involved a real violation with an object. An uplift to the starting point of one years’ imprisonment is justified. That brings the starting point to six and a half years.
[34] Then there are the remaining 21 indecent act charges. Your case is slightly unusual to this extent. Many cases involving sexual offending against children over a period of time involve representative charges.13 The factors which I have identified as aggravating the sexual violation charges are also relevant to the indecent act charges. Overall, I consider a one year uplift is appropriate.
[35]This results in an overall starting point of seven and a half years’ imprisonment.
11 R v AM, above n 5, at [117].
12 R v C (CA43/98), 28 May 1998; R v Bell CA393/05, 28 April 2006; R v Rua [2014] NZCA 599.
13 See for example R v Takamore [2013] NZHC 719; Bond v R [2010] NZCA 381; and R v Hart
[2009] NZCA 276.
Adjustments to the starting point
Previous convictions
[36] You were convicted of serious sexual offending against children in 2003 when you were found guilty on 13 charges. The offending occurred over a 19-year period from 1972 to 1991 against eight different victims. As I have said you were sentenced to four and a half years’ imprisonment. I have read the Judge’s sentencing notes. They reveal a concerning similarity to the current offending all these years later. Your historic victims came from three separate families. You were extremely friendly with the parents of those families and you abused the trust of the young children who found themselves intermittently in your care. As now, you expressed no remorse then and you were found guilty by a jury. The singular difference between now and then is your guilty plea on this occasion but, of course, that is accompanied by your denials of the offending.
[37] I uplift the starting point by six months not to punish you twice for the earlier offending but in recognition of the real need in your case for a sentence focused on deterrence and protection of the community.
Age
[38] Sometimes the age of the offending may be taken into account as a mitigating factor. You turn 79 towards the end of this year. The Crown concedes some reduction may be justified for your age citing a Court of Appeal decision involving a 65 year old appellant who received a 10 per cent discount due to his age.
[39] I do not agree that any reduction warranted in your case. The reductions in sentence tend to recognise that the factor attracting the reduction mitigates the culpability of the offender. There is no element of mitigation in your case. You are, as you describe, in excellent health. You are fully functioning. There is little justification for a reduced sentence to reflect the fact you are 78 when, rather than mitigating your offending, your age aggravated it because of the gross discrepancy in age between yourself and your child victims.
Guilty plea
[40] You pleaded guilty at the earliest opportunity and are therefore entitled to the full 25 per cent reduction in sentence to which those who enter an early guilty plea are entitled.14
[41]The result is an end sentence of six years’ imprisonment.
Finite sentence
[42] If I sentenced you to that term you would be eligible to apply for parole after serving one-third of that sentence.15 In my view, a third — that is two years’ imprisonment — would be completely inadequate in terms of the need to protect the community from your offending.16 As such, I am able to impose a minimum period of imprisonment of two-thirds of your sentence. Two-thirds of your finite sentence would be four years. This raises then the question whether a sentence of preventive detention should be imposed or a finite sentence.
Preventive detention
[43] The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to its safety.17 You have been convicted of a qualifying sexual offence and you were over the age of 18 when you committed this offence. Therefore, if I am satisfied you are likely to commit another qualifying sexual offence if released from prison at your sentence expiry date, a sentence of preventive detention may be imposed.18
[44] In considering whether to impose a sentence of preventive detention I must take into account five factors:19
(a)any pattern of serious offending disclosed by your history;
14 Hessell v R [2010] NZSC 135.
15 Parole Act 2002, s 84.
16 Sentencing Act, s 8(2)(d).
17 Section 87.
18 Section 87(2). A sentence expiry date is the date at which a determinate sentence is fully served: Parole Act, s 82(1).
19 Section 87(4).
(b)the seriousness of the harm to the community caused by your offending;
(c)information before the Court indicating a tendency to commit serious offences in future; and
(d)the absence or failure of efforts by you to address the cause of your offending;
(e)the principle that a lengthy determinate sentence is preferable if it provides adequate protection for society.
[45] In looking at these matters I have paid close attention to two reports: a psychological assessment prepared by clinical psychologist Johan Carstens, and a report by Dr David Chaplow, consultant psychiatrist. Seven previous reports have been prepared by psychologists. The key points that emerge from the two latest reports prepared in September and October 2019 are these:
(a)The most appropriate intervention based on the level of future risk you present is treatment at a special treatment unit for child sex offenders but because you vehemently denied your previous offending there can be no such referral.
(b)Yours is described as a “deviant sexual attraction” to pre-pubescent children and your offending history over an 18 year period demonstrates skilful creation of opportunities for spending time alone with children where you can ingratiate yourself with treats, food adventure outings and games. Your grooming is described as systematic and intensive, gaining the trust of primary caregivers and the children themselves. Your offending behaviour is said to be maintained by ongoing and repetitive satisfaction of deviant sexual desire without detection. The way you normalised sexual activity by portraying them as games or massages is said to be fuelled by your overinflated and distorted view of yourself as a benefactor and caregiver where parents fell short.
(c)Completion of treatment in the future could be regarded as a potentially protective factor but you have completed no such intensive treatment so the protective factor does not yet exist for you.
(d)You are considered to be at high-risk of further sexual offending which, should it occur, is most likely to be against the backdrop of befriending families with pre-pubescent females and grooming them to the point of sexual offending. One report comments on your report of motivation to participate in recommended treatment but the psychologist says your stance on your offending may pose a significant barrier to your engagement in such a programme because at least some acknowledgment of sexual offending is required before participation in a programme.
(e)Your narcissistic personality traits, and past and recent history, are said to indicate that you are a paedophile and the extensive lengths you went to, to approximate yourself to and ingratiate yourself with the child victims demonstrates the strength of your perverse sexual desire and the ongoing danger that exists without accepting you have a problem. Dr Chaplow assesses your risk for reoffending as current and ongoing and likely to be, for the future.
[46] I turn now to the five factors which the Sentencing Act requires me to take into account when considering preventive detention.
Section 87(4)(a): any pattern of serious offending disclosed by the offender’s history
[47] Your current offending followed a similar pattern to your previous offending: ingratiating yourself with families by taking the role of a caregiver and benefactor, gaining the trust of the parents, grooming the children and then sexually offending against them. Your history reveals a clear pattern of aberrant sexual behaviour towards children over a significant period of time.
Section 87(4)(b): the seriousness of the harm to the community caused by the offending
[48] Sexual offending of this nature causes intense harm to both the children offended against and their families. The consequences that result from this kind of offending are often said to be incalculable. As Dr Chaplow noted in the Psychiatric Report, “clearly the victim harm will be on-going in the lives of children.”
Section 87(4)(c): information indicating a tendency to commit serious offences in future
[49] The PAC report assesses you as at high risk of further sex offending. The writer notes you are “indiscriminate when it comes to victims, and very adept at extensive grooming of families and victims, gaining their trust and friendship.”
[50] Mr Carstens puts you in the high-risk category for further sexual offending. He reports that sex offenders who have both elevated traits of psychopathy and sexual deviance are especially likely to reoffend and to do so quickly. Mr Carstens reports the presence in you of both psychopathic personality traits and deviant sexual arousal.
[51] It is of particular concern that your current offending occurred despite previously serving a sentence of imprisonment and being subjected to an extended supervision order between April 2008 and April 2013. Similarly, Dr Chaplow notes that offending so soon after being imprisoned and completing a 5-year period of probation is indicative of your tendency to commit further offending.
[52] Your counsel submits that given your age, your drive to commit further offences in the future will diminish over time. But that has not been the case. Where the risk of sexual re-offending normally decreases after 50 years of age and more so after 60, you re-offended when you were 76 years old. This is said to be evidence of the enduring nature of your deviant sexual attraction towards children.
Section 87(4)(d): the absence of, or failure of, efforts by the offender to address the cause or causes of the offending
[53] You have made no efforts to address the causes of your offending. Indeed, you refuse to acknowledge you have any problem and you deny you have created victims.
[54] As the Crown submits, despite the duration of your offending, despite a period of imprisonment, despite a period of parole and five years of an extended supervision order, you have not taken advantage of any opportunities for rehabilitation. You have done nothing to recognise your offending, the harm to your victims or to address your risk of further sexual offending.
[55] Your counsel submits you are now open to exploring treatment. I agree that accepting responsibility for such actions sometimes takes time but there is no basis upon which I feel able to accept the submission that there “are no clear barriers to [you] engaging in rehabilitation.” The submission is contradicted by the reports of the experts.
Section 87(4)(e): the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society
[56] The next question for me is whether your offending can be managed by a determinate sentence with conditions. This requires an assessment as to the risk you may pose many years from now. “Preventive detention is all about the assessment and evaluation of risk.”20
[57] When having regard to the principle that a finite sentence is preferable, if adequate protection can be provided, the Judge must consider the possibility of an extended supervision order.21 Although an ESO must be considered as a relevant factor in determining whether to impose preventive detention, the availability of an ESO does not automatically render a sentence of preventive detention unavailable. As the Court of Appeal stated in Leota v R.22
An ESO is not a direct replacement for a term of preventive detention. A fact- specific assessment is required as to the risk reduction effect of an ESO in a particular case.
[58] The Crown submits that a lengthy determinate sentence has been tried before. There are now 4 further victims and numerous offences committed against them. The
20 J v R [2019] NZCA 581 at [58].
21 R v Mist [2005] 2 NZLR 791 (CA) at [100]-[102].
22 Leota v R [2018] NZCA 200 at [19].
Crown acknowledges that although a determinate sentence may be presumptively preferable, it is not when there is a significant risk of future offending.
[59] In your counsel’s view, coupled with registration on the Child Sex Offender Register, a finite sentence is the most appropriate sentence for “a nearly 80-year-old man” who has never had treatment before and who can be managed in the community on release through an extended supervision order.
[60] Mr Dixon relies on the case of R v Parahi for the proposition that in finely balanced cases, an ESO may tip the balance in favour of a finite sentence.23 But your case is not finely balanced.
[61] Your risk of reoffending is unambiguously high and, perhaps crucially, you fail to accept you have offended. The possibility of therapeutic success may be limited by the low prospect of developing sufficient insight to even allow the initiation of treatment. In such a case, the need to protect the community must prevail.24
[62] Equally, your minimisation of your offending may warrant scepticism as to the prospects of rehabilitation and affect the assessment of future risk.25
[63] I do not regard a finite sentence in combination with an extended supervision order as mitigating the risk you present of committing further sexual offences. There is a real risk that if you receive a finite sentence, you will continue to take no steps to address your offending and eventually, will be released. The community must be protected from that prospect. Neither imprisonment nor the extended supervision order impacted on you. The risk is simply too high that, on release, you will offend again.
[64] I consider there is little option but to impose a sentence of preventive detention, rather than a finite sentence even with conditions.
23 R v Parahi [2005] NZLR 356 at [87].
24 J v R, above n 20, citing Jenkins v R [2015] NZCA 131 at [43].
25 J v R, above n 20, citing R v Scoobie CA 186/01, 2 August 2001 at [19].
Sentence
[65] Mr Orchiston would you please stand. On the charge of sexual violation by unlawful sexual connection I sentence you to preventive detention with a minimum period of imprisonment of five years.
[66] On the second charge of sexual violation by unlawful sexual connection and the 21 charges of indecent acts, I sentence you to six years’ imprisonment to be served concurrently with the sentence of preventive detention.
[67] It remains only for me to explain to you that you are a registrable offender under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016. A written notice will be given to you by the Court.
[68]Please stand down.
Karen Clark J
ANNEXURE
R v C (CA43/98)26
The 11 year old victim was in effect the offender’s step-daughter. She was entrusted to his care for a few days. The 20 year old offender induced V to masturbate him, masturbated her and digitally penetrated her. This case fell in the lower end of band two.
R v Bell27
The nine year-old victim, assisted the male offender with his housekeeping in exchange for money. A number of indecent assaults took place over six months, culminating in two instances of sexual violation on the same occasion. The sexual violations involved digital penetration and licking the victim’s genitalia. The indecencies included rubbing the victim’s vagina through her clothing and licking and sucking her breasts. The offender also took indecent photographs of the victim, exposed himself to her and asked her to touch his penis. This case fell in the lower end of band two.
R v Harris28
The 47 year old male offender offended against a 12 year old boy for around 18 months when they both resided at a caravan park. The offending involved playing with and sucking the victim’s penis and attempting to anally penetrate the victim, although he did not persist with this when the victim pulled away. The victim was left severely traumatised. In finding the case fell in the higher end of band two the Court of Appeal noted there was a large age disparity and the offending was for a long duration.
R v Rua29
The offender was a teacher aid at the 11 year old victim’s school and was convicted of six charges of doing an indecent act on a young person, two charges of sexual violation by unlawful connection and attempted sexual violation by unlawful sexual connection. The counts of sexual violation involved the offender licking the victim’s genitalia, digital penetration and attempting to put his penis in her mouth. Taking those offences as the lead sentences the Judge found the offending fell at the lower end of band two and adopted a starting point of five and a half years. That starting point was upheld by the Court of Appeal.30
26 R v C (CA43/98), 28 May 1998.
27 R v Bell CA393/05, 28 April 2006.
28 R v Harris CA320/93, 15 November 1993.
29 R v Rua [2014] NZCA 599.
30 At [58].
Bond v R31
The appellant was sentenced to five-and-a-half years’ imprisonment on one charge of unlawful sexual connection and a representative count of the same. The offending occurred between 2004 and 2007, when the victim was aged five to eight years old. The offending involved the appellant touching and penetrating the victim’s genitalia with his finger. The Court of Appeal upheld a starting point of five years six months’ imprisonment.
31 Bond v R [2010] NZCA 381.
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