R v Parker

[2013] NZHC 2075

NOTE:  PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTIUCLARS, OF COMPLAINANTS PROHIBITED BY S

203 OF THE CRIMINAL PROCEDURE ACT 2011

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-029-696 [2013] NZHC 2075

THE QUEEN

v

JAMES ROBERTSON PARKER

Hearing:                   15 August 2013

Counsel:                  M B Smith and C A Anderson for Crown

A J H Witten-Hannah for Mr Parker

Judgment:                15 August 2013

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, Whangarei

Witten-Hannah Howard, Northcote, Auckland

R v PARKER [2013] NZHC 2075 [15 August 2013]

Introduction

[1]      James Robertson Parker, you appear for sentence today having pleaded guilty to 74 charges involving unlawful sexual connection and indecencies,  committed against young boys.

[2]      The offending includes 25 charges of indecent acts with boys under the age of 12 years, 35 of indecent acts on boys aged between 12 and 16 years, four of sexual connection with a child under the age of 12 years, five of sexual connection with a young person aged between 12 and 16 years and five of sexual violation. Most of the offending occurred in the period between 2006 and 2012, although there are two charges arising out of events in 1999.

[3]      On 22 August 2012, you pleaded guilty to 49 of those charges.  Following a hearing in the District Court at Kaitaia, you subsequently pleaded guilty to a further

25 offences. Those pleas were entered on 10 April 2013.

[4]      Following entry of those pleas, the District Court Judge indicated that it was likely he would decline jurisdiction and transfer sentencing to this Court so that the imposition of the indefinite sentence of preventive detention could be considered. The Judge took that course.1

[5]      The lead offences for sentencing purposes will be those of sexual violation. Escalation to conduct involving connection between mouth and penis began around

2008 and continued until 2012.  There were later instances of anal penetration that occurred in 2012.

[6]      The maximum penalty for sexual violation is 20 years imprisonment.  Other charges  carry lesser maximum  penalties,  ranging  from  between  7  and  14  years

imprisonment.

1      R v Parker DC Kaitaia CRI 2012-029-696, 10 April 2013.

Sentencing goals

[7]      For offending of this type, I am required to denounce your conduct and to hold you accountable for it.  I am required to impose a sentence that will deter you and others from offending in this way in the future.  Those sentencing goals can be achieved through the imposition of a very long period of imprisonment, coupled with a term during which you would not be eligible to seek parole.

[8]      However,  there is a  more important  goal.   That  is  the protection  of the community, in particular young and vulnerable boys, from your predatory conduct. The sentence of preventive detention is available to respond to cases in which a finite sentence of imprisonment is unlikely to provide an adequate degree of protection for such victims, and the community in general.   Under a sentence of preventive detention, an offender is held in custody until such time as the Parole Board, after receiving expert reports, is of the view that he or she is no longer a risk to the community.  Even then, the offender is on life-long parole to supervise his or her conduct after release.

[9]      The essence of my task today is to decide whether a lengthy finite term of imprisonment  will  be  sufficient  to  meet  concerns  about  likely  reoffending,  or whether preventive detention must be imposed.

A summary of the offending

[10]     Your offending occurred while you were first a teacher and later deputy principal at Pamapuria School, near Kaitaia.

[11]     Mr Parker, there are two classes of persons in whose care and under whose protection young children should be entitled to feel safe.   One category is family, most importantly the childrens’ parents but wider whanau relationships should be included in that.  The second are school teachers in whose care parents are required to place children when they reach an age that they must attend school compulsorily. The trust reposed in you by the community generally to keep the victims safe was breached in the most appalling fashion.

[12]     The 74 charges involved over 20 different complainants.   All were young boys with whom you came into contact at Pamapuria School.  Generally, they were aged between 10 and 15 years.

[13]     Although you have pleaded guilty to 74 charges your offending is much more extensive than that.  Of those charges, 58 are representative in nature, meaning that they refer to offences that took place on more than  one occasion.   The precise number of times that you accept offending is impossible to calculate.  But, I proceed on the basis that you have admitted to at least 74 discrete offences and accept that there were cases of multiple offending against particular victims.

[14]     You admit having perpetrated the abuse by engaging with the boys’ parents and then forming and developing trusted relationships with them.  The offending was of a significant duration.   It involved calculated and systematic execution.   Those processes enabled you to invite boys back to your home, outside of school hours on the basis that the parents trusted you to look after them.  Often the boys would stay overnight, or on a number of consecutive days during school holidays.

[15]     Many of the boys came from disadvantaged homes.  They were attracted to activities provided at your home, which was on a farm property.   These activities included quad bike riding, cutting lawns on ride-on mowers, interacting with farm animals and taking swimming trips to local water holes.   These were the most vulnerable of your victims.

[16]     Although you lived at the farm property with your wife, a child and two step children, you were in the habit of sleeping on a foam mattress in the lounge, adjacent to the television. That occurred irrespective of whether someone was visiting. When the victims stayed overnight you would pull out an additional foam mattress (or mattresses) and the boy (or boys) would sleep on the mattress next to you.

[17]     Usually, you and the boys would watch television together.  After the lights were turned off, sexual abuse would occur in the lounge area.   Sometimes this occurred in the early hours of the morning.

[18]     You accept that, typically, you would identify a boy you believed may be vulnerable to sexual advances and then begin the offending.   This commenced by cuddling the child sleeping next to you and then lying on your side and pressing your body against the boy in a “spooning” fashion.

[19]     That  conduct  would  advance  to  touching  the  child’s  penis.    On  some occasions that occurred over the top of the clothing, though more often it consisted of direct skin to skin contact.

[20]     In the next level of escalation, you placed the victim’s hand on your penis. You would masturbate him and encourage him to do the same to you.  That form of mutual masturbation is a consistent theme of much of the offending to which you have pleaded guilty.

[21]     Your conduct continued to escalate.   Oral connection between your mouth and the boys’ penis, or vice versa, would occur.  On other occasions there would be feigned sexual connection in which you thrust your penis in a area between the victim’s  buttocks  and  inner  thigh.     Later,  with  two  victims,  there  was  anal penetration.  That occurred after the 2009 Police investigation, something to which I shall return.

[22]     There  were  a  number  of  occasions  in  which  you  were  involved  in masturbation activities with more than one child present.   Typically, the particular offending would conclude following ejaculation achieved through masturbation.

Victim impact statements

[23]     To spare the victims and their families, many of whom are here today, I do not propose to go through the detailed facts in relation to each victim.  What is clear is that you have harmed the small community that you were supposed to serve to an unimaginable degree.

[24]     I begin by acknowledging the presence here today of many of the victims of your offending and family members.   I acknowledge in particular the courage of

those who have stood today in Court and read their victim impact statements with great dignity.

[25]     The victim impact statements make harrowing reading.   The extent of the emotional harm that you have brought about is difficult to comprehend.   For a teacher to abuse children in their care in this way is reprehensible.  The depraved and unfeeling nature of your offending only exacerbated the harm they suffered.

[26]     A consistent theme in the victim impact statements is the feeling of violation of the boys and their lack of power to stop the abuse.  That is not unusual.  Many victims of child sexual abuse fear physical reprisals if they complain about the conduct.  They also demonstrate concern about whether any person to whom they might complain would believe them, in the face of your reputation as a trusted school teacher.

[27]    Another common element of many of the victim impact statements are subsequent feelings of depression and difficulties in going back to anything approaching normal life.   Something that came through very clearly today, from those who read the victim impact statements, was a feeling that you have stolen the innocence of childhood from them.

[28]     I had hoped that the way in which the statements were read by victims and family members today would give you a greater insight into the harmful effects of your conduct than you seem to show when you were first confronted about the activities.  You may or may not have got that greater insight.  However, I could not help to notice that when you were listening to the statements you did not even have the courtesy to look the victims in the eye.  You simply sat there holding your head in your hands and not looking towards them.

Personal information

(a)      Pre-sentence report

[29]     You were born in January 1975.  At the time of the first offending, in 1999, you were 24 years old.  By the time of the last offending you were aged 37.

[30]     The pre-sentence report writer identified the primary factor in your offending as a sexual attraction to pubescent boys, which you had said you first experienced when aged about 13.  You told the report writer that you had had a dysfunctional relationship with a violent father which, coupled with a spell of extremely strict schooling had left you with a fear of men and their potential for violence.  When you turned 18 you went to Auckland and qualified as a primary school teacher.

[31]     After teaching at a number of schools in the Far North and having had two years experience of teaching in the United Kingdom, you obtained a position at Pamapuria School.  Eventually, you became deputy principal.

[32]     In talking to the probation officer, you insisted that you “genuinely cared for the boys and wished to protect them from harm” and you acknowledged “that your offending was wrong”.  Those two statements are to a degree contradictory and tend to support the report writer’s view that you did not seem “to understand the huge downstream effect of [your] offending on [your] victims and their families”.   The probation officer continued:

[Mr Parker’s] likelihood of reoffending and of harm to others is assessed as high until such time as he has completed appropriate treatment.  Given the very deliberate strategy he employed to gain access to his victims through becoming a qualified primary school teacher, gaining a position of trust in a school with a large number of single parent boys, and having the cover of an apparent happy marriage, he presents an extremely high risk to the community.

(b)      Health assessors’ reports

[33]     As required by the Sentencing Act, two health assessors’ reports have been obtained for sentencing purposes.  One is from Dr Pillai, a consultant psychiatrist. The other is from Ms Sharma, a registered clinical psychologist.  The reports are not recent but provide sufficient insight to enable me to sentence.

[34]     Dr Pillai has noted your lack of prior psychiatric history.  She draws attention to your “life-long attraction to males” and the fact that you knew that you liked boys. You said you were affected in your conduct by your upbringing in a Christian home and teachings that regarded homosexuality as an “abomination to the Lord”.

[35]     You told Dr Pillai that while you understood your conduct would be regarded as “grooming”, you had a genuine “paternal love” for the victims.  You did not see yourself as a “bad person” but as one who had “made terrible mistakes”.

[36]     Acknowledging that you did not offer this as a justification or excuse for your offending, you told Dr Pillai that your “victims had manifested no behaviour problems, were pubescent boys, had never been forced to participate, always had the opportunity to not participate in sexual activity with [you] and never [had] spoken about it with [you] before, during or after the experience”.

[37]     Dr Pillai, after using accepted risk assessment tools, notes that you had a positive attitude towards treatment.   She believes that if you undertake treatment there is a real chance that it may assist.

[38]    The psychological assessment was undertaken by Ms Sharma.   She too recounted your personal history before expressing an opinion on risk assessment.

[39]     Ms Sharma identified a number of factors that are relevant to likelihood of future offending:

(a)       Sexual deviation – namely, paedophilia

(b)The high density of sex offences – both the number of offences was high and there was a stereotypical pattern and similar victims

(c)       There was an escalation in frequency of the offending and the severity of it

(d)The  possession  of  attitudes  that  supported  or  condoned  sexual offending

(e)       Relationship problems – in other words, your inability to establish and maintain age-appropriate intimate relationships.

[40]     Like Dr Pillai, Ms Sharma accepts that if your motivation to seek treatment and to apply what you learn from it is followed through, your risk of reoffending may be classified as low to medium.

(c)      Information from counsel for Mr Parker

[41]     Your counsel, Mr Witten-Hannah (whom I might say has said everything in your favour that could reasonably be said) has put before me some additional information.

[42]     He   has   provided   an   assessment   from   another   clinical   psychologist, Dr Blackwell, who reviewed the health assessors’ reports.  She expresses the view that while your sexual deviancy appears to have been of long duration, it is possible that it could be significantly modified by appropriate (and urgent) psychological therapy associated with arousal reconditioning.

[43]     Mr Witten-Hannah has produced to me letters from other people whom, it might be said, express support for you while expressing disbelief of what has happened. They seem to believe that you have a prospect of rehabilitation.

Appropriate finite term of imprisonment

[44]     My first task is to identify the sentence that would be imposed if you were sentenced to a finite term of imprisonment, rather than preventive detention.  That enables me to consider separately whether the finite term will be sufficient to meet relevant sentencing goals, including importantly the need to protect young boys from you.

[45]     I agree with Mr Smith, for the Crown, that your offending fits within the most serious band identified in the Court of Appeal’s guideline sentencing judgment by which I am bound.2    That band, which includes offences such as unlawful sexual connection  through  anal  penetration,  indicates  an  appropriate  starting  point  for

sentence of between 16 and 20 years imprisonment.3   The precise starting point must

2      R v AM(CA27/2009) [2010] 2 NZLR 750 (CA).

3 Ibid, at para [90].

be assessed by reference to aggravating factors relating to the offences.  Such factors include the nature and extent of all related offending for which you are being sentenced.

[46]     I consider that the following factors put you into that category:

(a)       The offending occurred over many years, most significantly between

2006 and 2012.

(b)There were multiple victims. A number of the victims were abused on more than one occasion, sometimes as part of continuing conduct.

(c)      You were in a position of trust.  That position related both to the trust that innocent children must necessarily have in their teachers but also to the wider community’s trust in teachers in whose care children must be placed at schools.

(d)      Enormous harm has been done both to victims and to the community.

I have already spoken of the individual victims but I also include those within the wider community affected by your offending.  This was a relatively small community in which many families have been directly affected by your conduct.  The harm to the victims and to the community generally cannot be underestimated.

(e)      There  was  a  degree  of  planning  and  premeditation  about  your offending.   The way in which you went about arranging for the children to stay over at your home, in circumstances where you knew that   you   would   attempt   sexual   activity   with   them,   shows premeditation, evidenced as a form of grooming.   It also shows a calculated  methodology.     This  is  confirmed  by  your  expressed decision to continue offending in the face of the 2009 investigation.

(f)      The nature of the offending.  The offending involved indecent assaults and  various  forms  of  sexual  violation.    The  range  of  conduct  is relevant as an aggravating factor.

(g)The scale of the offending.  In relation to the representative charges I observe that the summary of facts that you have accepted for sentencing purposes records:

Many   of   the   victims   have   been   abused   on   multiple occasions.   For the purpose of the summary of facts when the accused’s offending is described as having occurred on separate occasions then that offending has occurred on different dates and relates to separate sexual encounters.

[47]     In my view, the starting point must be the highest in the available range, one of 20 years imprisonment.

[48]     Mr Witten-Hannah suggested that there were three mitigating factors, other than the guilty pleas.

(a)      One  involved  the  victims’  conduct.    I  reject  that.    These  were vulnerable children and the offences were committed by a person in a position of power and trust.

(b)Second, he refers to co-operation and remorse.  I do not regard the co- operation as significant – certainly not so significant as to justify a credit to your sentence.  Any remorse will be adequately reflected in the credits to be given for the early guilty pleas.

(c)      The third is prior good character.  This offending began in 1999 when you were then aged 24.   That was the time at which  you started teaching in this community,.  Had people known then of the offending you would have had no reputation to lose after that date.  In my view, no credit for the earlier period is justified.

It follows that I agree with the Crown that there are no personal mitigating factors.

[49]     Pleas were entered to 49 charges at the earliest possible opportunity, on 22

August 2012.  A fulsome apology was read.  The balance of your guilty pleas were entered after the sentencing indication on 12 April 2013.  At that stage you entered your pleas to the remaining 25 charges.

[50]     Given the timing of the pleas and the fact that you have saved the children from further emotional turmoil by not putting them through the ordeal of a trial, I am prepared to give the credit permitted by the appellate decisions, namely one of 25%.4

That credit of five years would make the end sentence, on a finite basis, one of 15 years imprisonment.

[51]     The nature of your offending would require the imposition of a minimum term of imprisonment.  For you to be eligible for parole after serving only one-third of such a sentence would be insufficient to meet the sentencing goals of accountability, denunciation, deterrence and protection of the community.   In my view, a two-thirds period would be justified.  On that approach, the minimum term of imprisonment would be one of 10 years, the maximum that could be imposed in any event.

[52]     I  record  that  you  were  given  a  “Three  Strikes”  warning  at  the  time

convictions were entered in the District Court.

Preventive detention

(a)      Purpose of preventive detention

[53]     I turn now to deal with the question whether preventive detention should be preferred to a finite sentence of imprisonment.

[54]     The  purpose  of  a  sentence  of  preventive  detention  is  to  protect  the community by detaining an offender indefinitely.  To use the words of the statute, the

purpose “is to protect the community from those who pose a significant and ongoing

4      Hessell v R [2010] NZSC 135 (SX) at para [75].

risk  to  the  safety of  its  members”.5   When  considering  whether  to  impose  the sentence I must have regard to:6

(a)       any pattern of serious offending disclosed by your history;

(b)the  seriousness  of  the  harm  to  the  community  caused  by  your offending;

(c)       information indicating a tendency to commit serious offences in the future;

(d)the absence of, or failure of, efforts by you to address the cause or causes of the offending; and

(e)       the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

[55]     An assessment of risk, for preventive detention purposes, is one for me to make as presiding Judge.  It is a judicial evaluation, not a scientific one.  The report writers accept that the science is not sufficiently clear to make such predictions confidently.   I must be guided by the assistance I received from health assessors’ report.  My assessment of risk carries with it a corresponding obligation to evaluate the way in which risk might be managed.

(b)      Factors relevant to imposing preventive detention

[56]     I deal with each of the factors relevant to imposing preventive detention in turn.

[57]     While you had no previous convictions, prior to guilty pleas being entered on the current charges, the 74 counts to which you pleaded guilty disclose a pattern of serious  offending  that  has  escalated  from  indecent  assaults  to  anal  penetration,

constituting sexual violation.

5      Sentencing Act 2002, s 87(1).

6      Ibid, s 87(4).

[58]     The harm done to the community by your offending is high.  There is a risk that situations such as these might lead to a reduction of trust in school teachers generally.   No doubt some parents will have asked themselves whether they can really trust teachers with their children.   That potential for distrust is extremely serious in the context of the way in which communities must work and the need for all children to receive a good education.

[59]     I believe there is information that indicates a tendency for you to commit similar serious offences in the future.   You have not yet undergone intensive treatment.  Past behaviour is the best predictor of future behaviour.  In the absence of objective evidence of a greater insight into the harm caused by your offending, particularly in view of the deceitful and manipulative ways you have behaved in the past, I believe the risk of committing similar offences are release is significant.

[60]     That risk assessment is informed by your failure, after the 2009 investigation, to confess what you had done and to seek treatment.  You were warned to stay away from young boys and to keep yourself safe.   The fact that you were prepared to continue with your offending despite the investigations that had occurred and in the knowledge that you would ultimately be caught is extremely troubling.  What is even more troubling is that after the 2009 investigation your offending escalated to such an extent that by 2012 it included anal penetration.

[61]     I  accept  the  principle  that  a  lengthy  determinate  sentence  is  preferable, provided there is adequate protection for society.   In determining whether that protection is present, I take account of the availability of an extended supervision order to deal with you after the time at which you would otherwise be released.7

Whether  such  an  order  would  be  justified  at  some  stage  far  into  the  future  is

impossible for me to judge, at this stage.

7      R v Mist [2005] 2 NZLR 791 (CA); appeal allowed on other grounds: Mist v R [2006] 3 NZLR

145 (SC).

(c)      Is preventive detention required?

[62]     Having heard from the victims, considered the health assessors’ reports and the submissions on behalf of both you and the Crown, I have reached the conclusion that society cannot be adequately protected from you in the absence of imposition of a sentence of preventive detention.

[63]     My reasons for reaching that view are these:

(a)      I am not entirely confident that you will necessarily address the causes of your offending or, indeed, gain greater insight into the harm caused by it.  In particular, I am influenced by your failure to take steps to stop the offending at the time of the 2009 investigation.   I am also influenced by some of the attempts to minimise your offending that were put to me this morning; notably the suggestion that the conduct of the boys could amount to some mitigating factor.

(b)While there is a principle that a lengthy determinate sentence is preferable, that only applies if “adequate protection for society” is available.  I am undertaking a predictive risk assessment.  While there are certainly protections available for society in imposing a lengthy term of imprisonment of 15 years, with a minimum non-parole period of 10 years, and the ability to seek an extended supervision order beyond that, at some time those protections will go.

(c)      In your particular circumstances, I regard the ability to supervise and monitor your conduct on a life-long basis to be necessary in the public interest.  Preventive detention carries with it the ongoing protection of life parole and the ability for you to be recalled to prison if you were to reoffend.

(d)The sentence of preventive detention is not one of last resort.8    It is one  designed  to  protect  the  community  from  those  who  pose  a

8      R v C [2003] 1 NZLR 30 (CA) at para [6].

significant and ongoing risk to the safety of its members.   In many ways, it is a sentence that is as beneficial to offenders as to society. To the extent that you are now unsure of whether you might reoffend, it provides a degree of supervision and monitoring that will help you to cope at a time when you are regarded as safe to release into the community (if and when that were to occur) and is likely to lead to more immediate treatment in prison.  Of course, from society’s point of view, it has the advantage that you will be monitored regularly to see whether you are safe to release and if you are, to ensure that there are terms which will manage the risk of reoffending adequately.

[64]     It follows that I will be imposing a sentence of preventive detention on each charge.  The remaining issue is the length of the minimum period of imprisonment required to accompany that sentence.9     In assessing a minimum period of imprisonment I am required to impose the longer of the minimum period of imprisonment required to reflect the gravity of the offending or the minimum period of imprisonment required for the purposes of the safety of the community, in light of your age and the risk you pose.

[65]     I consider the appropriate term is one of seven years, which I have fixed with regard to the period I would have imposed if a finite sentence had been given.  The lower minimum  period  is  based  on  my perception  that  the sooner  you  become eligible for parole the sooner you will begin treatment for your disorder.   I doubt very much whether you would be released on that first opportunity, but it would give the Parole Board an opportunity to become involved at an earlier time to make its

own  assessment  of  risk  10and  to  ensure  that  you  undergo  the  correct  treatment

programmes.

[66]     In that context, the availability of an extended supervision order for 10 years at the conclusion of a finite term of imprisonment should not be regarded as an

9      Sentencing Act 2002, s 89.

10     R v Johnson CA221/03, 23 October 2003 at paras [31] and [32].

“agreeable alternative” to preventive detention.11   In my view, the imposition of the indefinite sentence with the type of minimum period I intend to impose will suffice.

Result

[67]     Mr  Parker,  on  each  of  the  74  charges  you  are  sentenced  to  preventive detention with a minimum term of imprisonment of seven years.  The sentences will run concurrently.

[68]     I direct the Registrar to send a copy of these sentencing notes to the Chief Executive of the Department of Corrections.  I intend that they be forwarded on to the executive in charge of the prison in which you will be held.  I recommend that you be given such treatment as is prescribed to you to assist in your rehabilitation, as soon as possible.  I can do no more than that.

[69]     Stand down.

P R Heath J

11     R v Hutchison [2007] NZHC 55 at para [19].