R v Pooley HC Auckland CRI-2010-092-001202

[2011] NZHC 508

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-092-001202

THE QUEEN

v

GARY KEVIN POOLEY

Hearing:         5 April and 20 May 2011

Counsel:         J L S Shaw for the Crown

M E Mann for the Prisoner

Judgment:      20 May 2011

SENTENCE OF DUFFY J

Solicitors:    Meredith   Connell   P   O    Box   2213   (DX   CP24063)   Shortland   Street

Auckland 1140 for the Crown

Public Defence Service P O Box 76715 Manukau City Manukau 2241 for the

Prisoner

R POOLEY HC AK CRI-2010-092-001202 20 May 2011

[1]      Mr  Pooley,  you  appear  for  sentence,  having  pleaded  guilty  to  and  been convicted of: four representative and two specific charges of sexual violation by unlawful sexual connection; 12 representative and six specific charges of sexual conduct with a child; one representative charge of attempted sexual conduct with a child; and one charge of doing an indecent act with intent to insult or offend.  These offences are serious.  The maximum penalty for the offence of sexual violation by unlawful sexual connection is 20 years’ imprisonment.  The maximum penalty for sexual  conduct  with  a  child  is  10  years’  imprisonment.     Lesser  terms  of imprisonment are provided in the maximum penalties for the other charges.

[2]      The offending was against children: three sisters and their friends, both male and female.  The children’s ages at the time of the offending were as follows, and to preserve the children’s anonymity, I will for the moment refer to them simply by their Christian names:

(a)       N  was  aged  between  and  seven  and  11  years  at  the  time  of  the offending;

(b)      Her sister, S, was aged between six and 10 years

(c)       The other sister, J, was aged between five and nine years; Of their friends:

(a)       A, was aged between six to nine years;

(b)      L, was aged between nine and 12 years; and

(c)       M was aged between seven and 10 years.

Facts of the offending

[3]      Between January 2005 and February 2009, the three sisters, N, S and J, were living with their aunt.  During May or June 2005, the girls and their aunt developed a close relationship with you.  You lived two houses away from them at the time.  You

generally initiated the contact.   The resulting friendship you developed with the children and their aunt led to you being trusted with access to the children when no other adult was present.  You encouraged the children to visit you.  While they were at your home, you offered them money and food.  You bought them presents, and you allowed them to watch movies at your home and to swim in your pool.  Between June 2005 and February 2009, the extent of the trust that was placed in you was such that the children stayed overnight with you over the weekend.  You began by asking if the three sisters could stay at your house.  On other occasions, you initiated contact by visiting the sisters on their birthdays or at Christmas.  On these occasions, you bought sweets and money. You also took the sisters and their aunt out for dinner.

[4]      The sexual conduct which you engaged in with the sisters shows a pattern which I consider to be one of increasing seriousness.   The first conduct, which is covered by counts 1 to 3 in the indictment, was in 2005 when N was seven years old. From then until 2009, she was subjected regularly to indecencies.  These indecencies included  being  kissed  by  you,  being  encouraged  to  take  her  clothes  off,  being touched on her genitalia, you sucking her breasts, and inducing her to touch your penis.  On these occasions, N did as she was told and became completely naked.  She would sit  on  your bed  and  you  touched  her  genitalia.    She recalls  a  particular occasion when, having touched your penis, she began to cry. You then told her to get dressed; she did so, and she went home.

[5]      Between January 2008 and 28 February 2009, the seriousness of the sexual offending increased with N.  During that time, you kissed or licked her genitalia on a number of occasions.

[6]      Mr Mann, I note that your client is shaking his head.  He has pleaded guilty. He either accepts the facts I have outlined, which I have taken from the police summary of facts, or he does not.  He is entitled to a disputed facts hearing.  I am concerned about sentencing someone who is visibly displaying to me that he rejects what I am saying when the facts I am describing are taken from the police summary of facts.  Do you need some time to speak with him?

[Court adjourns to enable defence counsel to speak with the prisoner]

[7]      Do I take it, Mr Mann, that Mr Pooley does accept the factual account I have outlined?

[Defence counsel indicates that the police summary of facts is accepted] [Sentencing proceeds]

[8]      Between January 2008  and February 2009, the seriousness of the sexual offending against N increased.  During that time, you kissed or licked her genitalia on a number of occasions and, for the first time, you inserted your penis into her mouth.   Then in early 2009, when you were living at an address, and N was approximately 11 and a half years old, she spent the weekend at this address.  On the Friday evening, you asked her to get undressed and to get into bed, which she did. You also got undressed and lay next to her.   You then proceeded to touch her genitalia and kiss her.  You again inserted your penis into her mouth.  She describes herself as being reluctant to do so.  She says she was disgusted at the act she was asked to perform, and she felt embarrassed and scared.

[9]      Similar offending occurred later in 2009.  On that occasion you inserted your penis into N’s mouth. After that, you went into the bathroom where you masturbated in front of her and ejaculated into the bathroom basin.  The same day, you took a photograph of her in circumstances where she had opened her vagina with her hand. After you took the photographs using a digital camera, you showed the images to N. Looking at the photographs made her feel disgusted, and you told her you would burn them.

[10]     In relation to the sexual offending with S, she was regularly subjected to indecent acts when she visited your home and stayed overnight there with you on a number of occasions between June 2005 and February 2009.   These indecencies involved you putting your hand underneath her clothes and touching her bare bottom and legs with your hand.  You stopped once she indicated she was not comfortable with you doing these things to her.

[11]     The sexual offending with J involved indecent acts on a regular basis when she visited and stayed overnight at your home between June 2005 and February

2009.  You would encourage her to take her clothes off by telling her you did not want her clothes to dirty your bed.  You encouraged her to lie on your bed wearing only her underwear.  On these occasions, you put your hand under her underpants and rubbed her genitalia.  You also induced her to touch your penis.   In turn, you offered her money for doing so.   J said she would feel disgusted after completing these acts. These acts occurred on a number of occasions.

[12]     Between 2007 and 2008, the sisters visited you, accompanied by their friend M.  M visited you about nine to 11 times between January 2007 and December 2009. You would encourage him to visit by offering him sweets and ice-cream and lunch and, on occasions, you offered him money.  On each occasion he visited you, other children were present, but there were no other adults present.  During the visits, you encouraged him to pull your pants down for money.   He did not feel comfortable about doing this and said he would not do so.  On other occasions, you asked him to take all his clothes off.  This conduct forms the basis of the offence of attempting to induce a child to perform an indecent act.

[13]     In 2008, the sisters introduced their friends, L and A, to you.  They visited you at your home.  On these occasions, L, N and A would visit you after school.  On occasions, you would pick L and N up in your van and take them to McDonalds and buy them food.  L and A visited you often because you gave them lollies, food and you gave them a bike each.   They were also attracted to your home because you allowed them to watch movies and swim in your pool.   You were the only adult present when L and A visited.  Sometimes A would be on his own when he went to see you, and other times he would be with M and others.  During the times A visited, you regularly encouraged him to perform indecent acts by pulling his pants down for money.  He describes pulling his pants down on a number of occasions, including his boxers, exposing his penis, in anticipation of a reward.  You stood or sat watching him in the lounge and, after he had done these acts, you gave him money.

[14]     Also between January 2007 and November 2009, L and N would visit you.

On one occasion you called out to L and said “look”.  As you stood in the lounge,

you pulled your pants down to your knees, exposing your penis.  L saw your penis and expressed disgust. You then pulled your pants up as if nothing had happened.

[15]     When  the  police  interviewed  you,  you  admitted  much  of  the  offending against some of the children, but denied other aspects of it.   You have not been spoken to by the police about your offending against L and A.

[16]     You have entered guilty pleas to the police summary of facts which sets out the events I have just described.  By pleading guilty and by not formally disputing the summary of facts, I must treat you as having acknowledged them to be true and accurate.

Personal circumstances

[17]     In terms of your personal circumstances, you are 69 years old.   You live alone, though you have a relationship with a woman who is here in Court today supporting you.  You are in good physical health.  When you first appeared before me for sentencing, I was concerned that you might be depressed, and sought the benefit of a psychiatric report.  I have now had the benefit of such a report and I have had an opportunity to read it.  The report is consistent in many ways with what is recorded in the pre-sentence report.

[18]     At the interview with the probation officer for the pre-sentence report, you offered alternative explanations for each offence.  The explanations suggest you have little real insight into your offending.   For example, you tried to suggest that the children bear some responsibility for what occurred, when that is plainly wrong. You expressed some remorse. You explained that after the sexual contact, you would feel ashamed and cry at night.  However, you then re-engaged in sexual conduct with the children when the opportunity arose.  The pre-sentence report writer describes you  as  displaying little or no  insight.   You  felt  that  there was  no  point  in  the interview, if the writer could not recommend community work, and twice you spontaneously stated, “it’s not like I’m some sort of predatory paedophile”.   The report writer described sexual arousal and opportunism as being identifiable precursors to your offending, though you yourself have said the better explanation

was depression caused by a failed relationship with a woman, and the loss of your life savings.

[19]     From the discussion you had with the probation officer, it seems you lack a real appreciation of the seriousness of the charges you face.   You have failed to realise that they will lead to a substantial sentence of imprisonment.   The lack of insight and the difficulty in assessing your motivation to change has meant that the probation officer was unable to predict your risk of reoffending.  However, he has expressed his concerns about the lack of insight into the seriousness of the offending, and the attempt to apportion blame to the victims.  Initially, it was not clear to me whether this was reflective of a mental health  condition, namely depression, or whether it reflected your attitude to your offending.

[20]     The report writer has recognised that the nature of your offending and lack of insight indicates a need for psychological assessment and rehabilitative intervention as  a  parole  condition  or  within  custody.    I  record  here  that  a  psychological assessment will continue to be needed.   From what I have read of the psychiatric report, I can see that the type of conduct that has brought you before the Court for sentence today has been a feature of your life in the past.  It led to the failure of your marriage.  It is fortunate for you that your former wife and your current partner are here today to support you.

[21]     The impression I have had from reading the psychiatric report is that you are someone who has managed to sustain a marriage over a considerable period of time; you have worked hard; you have done well in life.  But from time to time, the type of conduct that has brought you to Court today has manifested itself.   I consider that you actually have a significant problem, which you have failed to own up to.  In the past, you were given the opportunity to attend rehabilitative programmes which may have helped you.  But it seems that either they have not worked or, in relation to your last attendance at a “SAFE” programme, that you did not complete them.  Until you do something about the unacceptable sexual behaviours that seem to have dogged your life, you will remain at risk of offending.  This type of offending is more likely to happen at a time when you are feeling down and things are not going well for you. During the time of the present offending, you experienced some emotional setbacks

in life.  But someone who is at risk of engaging in sexual activity with children when things are going wrong in his own life is a continuing risk to the community.  This is because everyone has bad moments from time to time in their lives.  The psychiatric report indicates to me that you are someone who is always likely to be vulnerable to further  sexual  offending  against  children  and  that  this  potential  to  offend  will continue unless you receive and successfully complete the type of treatment programmes now available for persons who sexually offend against children.

[22]     I have read and carefully considered the victim impact statements received from N, S and J and their mother, M and his mother, and A and L and their mother. The children all express anger, hurt, shame, disgust and subsequent emotional vulnerability and guardedness.  The reports indicate that the children have, each in his or her own way, been psychologically and emotionally damaged by their experiences of your offending.  There has, it has to be recognised, been a relief that there is no need for them to give evidence in Court.

[23]     The Crown submits that in the circumstances, an appropriate sentence is a starting point of 13 to 14 years, discounted by 15 to 20 per cent for the guilty plea. The Crown also submits I should consider the imposition of a 50 per cent minimum period of imprisonment.

[24]     Regarding aggravating factors relating to the offending, the Crown identifies the scale of offending, the breach of trust, the level of planning and premeditation, the harm to the victims and the vulnerability of the victims.

[25]     The Crown acknowledges that the only instances of the most serious offence of sexual violation by unlawful sexual connection occurred in relation to N.   The offending against the other children is considerably less serious.

[26]     In terms of the tariff case of R v AM [2010] NZCA 114; [2010] NZLR 750, the Crown submits that the totality of your offending places you at the lower end of band three. This is because it is said to involve the four aggravating factors to which I have referred.

[27]     The Crown accepts that your lack of previous convictions counts in your favour, but submits that this must be weighed against a lengthy period within which you committed the offences.

[28]     In  terms  of  the  guilty  plea,  it  is  acknowledged  it  has  led  to  significant benefits, as none of the children were required to give evidence.   However, the Crown says that the guilty plea was entered following negotiation between counsel, which resulted in a number of offences not being pursued by the Crown.  In addition, the Crown says that they had a strong case in relation to the counts for which you pleaded guilty, as you had effectively admitted these offences at the police interview.

[29]     In your defence, your counsel submits that the facts are not disputed, and that you do now accept that imprisonment is inevitable.  Your counsel argues for a lower starting point of six to seven years’ imprisonment, adjusted for mitigating factors personal to you, which would bring the sentence to one of five to six years’ imprisonment.   Your counsel  has  reached  this  circumstance by taking  the tariff decision in R v AM and applying the tariff bands for unlawful sexual connection. Your counsel places you in the lower to mid range of unlawful sexual connection between band two.

[30]     However, since filing those written submissions, your counsel has accepted today that the offences of unlawful sexual connection should be treated as if they were rape offences.  This is a responsible concession for him to make.  Further, it is one that is consistent with the principles stated in R v AM. Your counsel now accepts that in terms of the tariff decision in R v AM, the Crown’s submission regarding the appropriate starting point is the more appropriate and accurate starting point.

[31]     In terms of the aggravating factors of the offence, your counsel has accepted that there was premeditation, but has described it as more limited, with the offending being opportunistic in that you did not take steps to get any of the victims alone, and you attempted to distance yourself.  Your counsel accepts the victims’ vulnerability. Your counsel accepts there was harm to the victims, but submits that the scale of offending was moderate, but that there were a number of victims.  It is accepted that there was a breach of trust.

[32]     In terms of the mitigating factors, your counsel has referred to your criminal history and the fact there was a previous conviction for indecent exposure approximately 30 years ago, and has submitted this should be treated neutrally, due to its historic nature.  While the age of the offence would ordinarily make it neutral, the impact of reading the psychiatric report has brought home to me the fact that the latent  susceptibility to  engage  in  sexual  offending,  including  the  offending  that occurred 30 years ago, has always been present.  So that at a later time in your life when you were living alone and under stress, this susceptibility has re-emerged and caused you to commit the more serious offences that have brought you before the Court today.

[33]     Your counsel submits you should be given a 25 per cent discount for an early guilty plea.  He submits there has been genuine remorse, supported by your candid approach with the police and the entry of a guilty plea.  It is also submitted that you moved house three times during the period of your offending in an attempt to get away from the children, though no evidence is provided to support this proposition. In the absence of evidence, I am not prepared to accept that submission.

[34]     I do, however, note that the writer of the psychiatric report has referred to the fact that at times after the offending, you would feel shame.   Indeed, in 2008, the result of the offending caused you to commit an act of self-harm.  So clearly, in some way, you do have some insight into the inappropriateness and the unacceptability of your offending.   It is unfortunate that this degree of insight has been unable to overcome the impulses which have caused you to offend in the way that you have.

[35]     Mr Pooley, as I work my way through to the ultimate sentence, I have to identify a starting point and then to look a discount for mitigating factors.   This means that terms of imprisonment I talk about may alter, and you will not know what the final sentence is until I get to the end point.

[36]     I am required to take into account the purposes and principals of sentencing. The purposes of sentencing from s 7 of the Sentencing Act 2002 that I believe are relevant in your case are:

(i)The need to hold you accountable for harm done to the victims and the community by your offending;

(ii)To promote in you a sense of responsibility for and acknowledgment of that harm;

(iii)     To provide for the interests of the victims of the offences; (iv)           To denounce the conduct in which you were involved;

(v)To deter you or other persons from committing the same or a similar offence; and

(vi)To protect the community from you and to assist in your rehabilitation and reintegration into the community.

[37]     In terms of the principals of sentencing that are relevant in your case, I

believe they are:

(i)The gravity of the offending in this case, including the degree of your culpability;

(ii)The seriousness of the type of offences in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences;

(iii)The general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect  of similar offenders committing similar  offences  in similar circumstances;

(iv)I must take into account any information provided to the Court on the effect of the offending on the victims;

(v)I  must  also  impose  the  least  restrictive  outcome  that  is appropriate in the circumstances; and

(vi)I must take into account your personal family history, or other means of dealing with you that is partly or wholly rehabilitative.

[38]     I consider that when regard is paid to the entire pattern of offending, it does reveal a level of grooming of the victims by you.  I consider you set out to befriend N’s aunt.  You set out to engender a level of trust in yourself to the point where no one was concerned about the children spending time with you without another adult present and staying over for weekends at your home.  As you were not related to the children, to be able to attain that level of connection with them demonstrates the extent to which you had obtained the trust of the children, their parents and their caregivers.  To achieve that level of trust, there had to be a degree of planning on your part.

[39]     I consider you went to some trouble to offer the children experiences which may not have been so readily available in their own homes.  Here, I mean watching movies, swimming in your pool, and giving them sweets.   Once the trust was engendered and the children had come to enjoy what you offered to them, you could then procced to carry out your offending when it suited you.  The provision of the treats you offered the children also led to other children coming with them to your home, thus expanding the number of available victims.  The children were young, particularly when the offending began, and this made them vulnerable.  They were faced  with  someone with  whom  they had  come to  associate pleasant  enjoyable experiences.   Then, that person encouraged them to engage in indecent acts with him,  which  in  the  case  of  one  of  them  progressed  to  far  more  serious  sexual offending.

[40]     I also consider that the scale of the offending needs to be assessed in terms of the period of time it lasted: from 2005 until 2009.

[41]     I acknowledge that on any occasion when a child expressed disgust or did not want to carry out the indecent request you made of the child, you desisted, and that is something to  your credit.   Apart from the actual offences, there was no use of violence or any threats made.  Rather, you used the friendship and trust, plus the nice experiences you had to offer the children, as incentives to lead them to carry out your requests for them to engage in indecencies with you.  However, this type of conduct is also harmful as it leads to the young victims becoming mistrustful of others, to perhaps doubt their own judgments of others, and to wonder if they contributed to the activity.  Harm of this type can become apparent much later in a victim’s life.

[42]     R v AM is the tariff case for sentencing for serious sexual offences.  This case sets out the sentencing bands for consideration.  The case requires consideration of relevant culpability assessment factors so as to place the offending in one of the identified bands. The culpability assessment factors relevant in the present case are:

(i)       The level of planning and premeditation; (ii)    The vulnerability of the victims;

(iii)     The scale of the offending; and

(iv)     The breach of trust.

[43]     There are four sentencing bands applicable to rape and equivalent offending. [44]     Under R v AM, penile penetration of the mouth is seen as equivalent to rape

for  the  purpose  of  sentencing.    The  Court  in  R  v AM  considered  that  there  is sufficient latitude within the sentencing bands to reflect any differences in gravity between rape and oral sex.

[45]     In R v AM, no distinctions were made between sustained and brief instances of penile penetration.  I propose to use the fact of the penile penetration of the mouth to dictate the sentencing band; and then to use the contestable characterisations to assess the gravity of the crime.

[46]     I propose to take the three penile penetration of the mouth offences as the lead offences.  Standing back and looking at them overall, I consider that they do fall at the lower level of band three.  This is because I consider aggravating factors of breach of trust, planned premeditation, vulnerability of the victims and scale of the offending are all present.  Regarding planning and premeditation, they are present to a moderate degree.  Though there are elements of opportunism, you encouraged and created opportunities for visits, you gave the children gifts, and you befriended their caregivers.   This can be seen as grooming.   Thus, any opportunism arose in the context that you had engineered over a considerable period of time.

[47]     Regarding vulnerability of victims, I consider the victims were moderately vulnerable.  The children were clearly vulnerable to exploitation and manipulation by you.  However, this was not a case where you lived in the same house as them such that they had nowhere to go.   Nor were you a relative, and  you had less emotional power over them.

[48]     Regarding the breach of trust, again I consider that that was moderate.  You were a neighbour, a family friend, who would visit often, and you were trusted with the children.

[49]     Regarding the  scale of  the  offending,  I consider also  it  is  moderate.    It occurred over four years, was frequent, and there was a variety of offences, and there were six different victims.  The aggravating elements are the number of victims and the frequency of events.   However, no violence beyond what is inherent in sexual offences was used, and it appears that you left the children alone when they became visibly upset.

[50]     The lead offences are particularly serious, as indicated by the high potential penalty,  and  particularly  when  they  are  committed  against  a  child.    The  other offences  are  less  serious  and  would  fall  under  a  different  sentencing  approach without the connection to the lead offences.

[51]     Here, I consider that the number of aggravating factors, as I have said, places you at the bottom of band three.  Those aggravating factors are present largely due to

the connection between the lead offences and the other offences, which are less serious.  While four aggravating features may present as relevant to high culpability, these factors are present largely due to the connection between the lead offences and the related offences which are far less serious, and with regards to the offending as a whole, the oral penile penetration was brief and infrequent.   That it falls to be considered within the rape bands is due to a recent shift in policy.

[52]   I propose, therefore, to adopt as a starting point a term of 12 years’ imprisonment, which is the lowest starting point in band three.  I consider that the offences should be treated as concurrent, as they are clearly of a similar kind, and they are a connected series of offences.

[53]     I now turn to consider factors relevant to you, Mr Pooley. [54]          There are no aggravating factors.

[55]     I now turn to consider mitigating factors.

[56]     I accept that a guilty plea was entered at a reasonably early time, though not at the earliest opportunity.   I consider the fact that there were negotiations which resulted in other charges not being pursued is neutral.   Given that the guilty pleas were not entered at the earliest opportunity, I consider that 20 per cent is an appropriate discount for the guilty pleas.

[57]     I also consider that you are entitled to a further five per cent discount for your previous  good  record.     The  fact  is  that  even  though  you  seem  to  have  a predisposition that has caused you to offend in a similar way in the past, you have nonetheless, managed to maintain a good and law-abiding lifestyle for a long period of time, and that is to your credit.

[58]     The resulting discount  of 25 per cent leads to  a sentence of nine  years’

imprisonment.

[59]     I then turn to the consideration of whether or not there should be a minimum period of imprisonment.

[60]     If an offender receives a determinate sentence of imprisonment of more than two years, the Court may order that the offender serve a minimum period of imprisonment, which is a minimum period that is longer than the one-third of the length of the sentence.

[61]     Under s 86 of the Sentencing Act, the Court may impose a minimum period if it is satisfied that the one-third default minimum is insufficient to either:

(a)       Hold the offender accountable for the harm done; (b)  Denounce the conduct;

(c)       Deter the offender or others; or

(d)      Protect the community.

[62]     A minimum period of imprisonment must not exceed two-thirds of the full term of the sentence.   Thus if under s 86, a judge must consider how long the minimum period should be, and impose a sentence that would satisfy the above principles: R v Brown [2002] 3 NZLR 670 (CA) at [35]; R v Taueki [2005] 3 NZLR

372 (CA) at [53]-[56].

[63]    The central consideration is the offender’s level of culpability, which is increased by unusual callousness, extreme violence, vulnerable or multiple victims, and serious actual or intended consequences.

[64]     As parole after one-third of the sentence is served is the statutory norm, the circumstances of the offence must be more serious than those of offences of that kind normally encountered.  However, these are “elusive standards”: R v Brown at [30]. The Courts have avoided imposing guidelines, stating that consideration of the offending should not be constrained by the particular charge and should be analysed in context: R v Brown at [29], [32]. The conduct of the accused both before and after the offence can be taken into account: R v Martin CA358/03, 1 March 2004 at [27]- [28].  Further, a minimum period of imprisonment may be imposed even where the

case does not disclose any unusual features for the particular offending, although this may be relevant to the overall assessment: R v Wirangi [2007] NZCA 25 at [17].

[65]     The length of the minimum period of imprisonment will usually fall short of the maximum two-thirds of the finite sentence, although there is no presumption against the imposition of this maximum.

[66]     The  principles  of  holding  the  offender  accountable  and  denouncing  the conduct have already been taken into account, and further punishment is not required to further these goals.

[67]     However, I am concerned that you have not indicated that you understand the seriousness of your offending or the victims’ trauma.   Nor is there any significant remorse.   Further, you have already expressed a view to the probation officer that you do not feel a sentence of imprisonment would deter others, as it did not deter you;  though  you  did  indicate  that  the  criminal  justice  process  was  a  personal deterrent.  Thus, it appears to me that a longer sentence may be warranted to indicate the level of seriousness of the crime in order to deter you in the future.

[68]   The protection of the community is particularly important, given the vulnerability of the victims and how recently and prolifically you offended.  Again, you have not demonstrated remorse; it is likely you may reoffend, increasing the need for community protection.

[69]     I accept  that  one of the  strongest  arguments  against  the imposition  of a minimum period of imprisonment is your age.  You are currently 69 years old.  It is arguable that you will not pose a significant risk to children due to your age.  On the other hand, your offending was recent and lasted for four years.

[70]     I consider that a minimum period of imprisonment is appropriate to deter you and others, and to protect the community.  I consider that term should be four and a half years.

[71]     Mr Pooley, will you please stand.

[72]     The result is that on the three lead offences of sexual violation by unlawful sexual  connection,  you  will  be  sentenced  to  nine  years’ imprisonment  on  each offence, to be served concurrently.   On the counts of sexual violation by unlawful sexual connection, you are to serve a minimum term of imprisonment of four and a half years.  For the offences of sexual conduct with a child, you are sentenced to five years’ imprisonment for each offence, to be served concurrently.  On the charge of attempted   sexual   conduct   with   a   child,   you   are   sentenced   to   one   year’s imprisonment.  On the charge of performing an indecent act with intent to insult or offend, you are sentenced to six months’ imprisonment.  All terms of imprisonment are to be served concurrently.

[73]     Stand down please.

Duffy J