R v Senior

[2015] NZHC 236

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2013-406-10 [2015] NZHC 236

THE QUEEN

v

ARTHUR SAMUEL ROY SENIOR

Judgment::               20 February 2015

SENTENCING REMARKS OF MACKENZIE J

[1]      Arthur Samuel Roy Senior, you appear for sentencing on two counts of rape,1

10 counts of unlawful sexual connection,2 one count of attempted rape,3 one count of sexual grooming,4  seven counts of indecent assault,5  eight counts of making an indecent  publication,6   and  six  counts  of  supplying  a  Class  C  drug  to  a  person under 18.7  You were found guilty by the jury in December 2014 following your trial. You were acquitted on a further 11 counts.

[2]      Your  offending  spans  a  period  of  about  25 years  and  relates  to  nine complainants. There was a tenth complainant at your trial, but you were acquitted on

all counts relating to her.

1      Crimes Act 1961, ss 128(1)(a) and 128B.

2      Sections 128(1)(b) and 128B (nine counts); s 134(1) (one count).

3      Section 129(1).

4      Section 131B(1).

5      Section 134(2)(a) (three counts); s 134(3) (three counts); s 135 (one count).

6      Films, Videos, and Publications Classifications Act 1993, ss 123(1)(a) and 124.

7      Misuse of Drugs Act 1975, s 6(1)(d) and (2).

R v SENIOR [2015] NZHC 236 [20 February 2015]

[3]      I describe your offending briefly. The victims fall into three broad categories. The first was a young girl, aged 12 to 15 at the time, whom you indecently assaulted. Your boat and her family’s boat were moored together in Queen Charlotte Sound in a holiday period sometime between 1984 and 1986.  You contrived an opportunity to be alone with her in your boat for a short time, and indecently assaulted her, over her clothing.

[4]      The second  group of complainants, against whom  you offended  between

1993 and 1998, were the daughter of a woman with whom you were living, and her school friend.  You regularly visited the daughter, who was aged nine to 12 at the time, in her bedroom when she was asleep and indecently assaulted her.   Those assaults escalated to sexual violation by unlawful sexual connection, by digital penetration and oral sex.  On occasions when her school friend, aged 12 to 13 at the time, stayed overnight, you indecently assaulted her, and had unlawful sexual connection with her by digital penetration, on two occasions.

[5]      The third and largest group of complainants are six young girls, all aged between 14 and 16 years of age, against whom you offended over a period between

2010 and 2012, when your offending was disclosed.  They have somewhat similar backgrounds.  They are from broken homes, without a close supportive relationship with parents or other adult role models.  You targeted and preyed on victims with these characteristics.  You groomed them by befriending them, giving them gifts and money, letting them drive your vehicles, intended to make them feel they owed you something in return.  You took them to stay at your house.  You supplied some of them with alcohol and cannabis and BZP.  You then engaged in the sexual activities with them which have resulted in your convictions.  The offending includes rape and other sexual violations.  Some of those offences were committed at your house when the girls were staying there.  Sometimes, you took them away in your campervan to a remote location and offended against them there.

[6]      With two of the girls, you took sexually explicit photographs of them.  You claimed that the girls consented to those photographs being taken.  The verdicts do not necessarily indicate the jury’s view on that.  I am satisfied on the evidence that both girls were unaware that the most explicit photographs were being taken and did

not consent to them.  They are not photographs which indicate that the subject was a willing participant.   Some of the photographs show you sexually interfering with them.  One of the counts of unlawful sexual connection was based upon an act of digital  penetration  depicted  in  one  of  the  photographs.    The  jury  must  have concluded that you should have realised the photographs have a tendency to promote the exploitation of young persons for sexual purposes.  I have no doubt the jury was right to reach that conclusion.

[7]      I describe briefly the offending against  each  of the victims  in  this  third category.  For the first victim, there are two counts of supplying a Class C drug to a person under 18, cannabis and BZP respectively, three counts of making an objectionable publication, and one count of unlawful sexual connection based on one of the photographs.   For the second victim there are five counts of making an objectionable publication, two counts of unlawful sexual connection by digital penetration and oral sex, one count of attempted rape, and one count of indecent assault.   For the third victim there is one count of indecent assault on a young person, one count of unlawful sexual connection by digital penetration, one count of rape, one count of supplying cannabis to a person under 18, and one representative count of unlawful sexual connection with a young person.  For the fourth victim in this category there is one count of sexual grooming and two counts of indecent assault.  For the fifth victim there are two counts of supplying cannabis to a person under 18.  For the sixth victim there are one count of unlawful sexual connection by digital penetration, one count of rape and one count of supplying cannabis to a person under 18.

[8]      You maintain that any sexual activity with the victims was consensual.  The evidence indicates that there was at least some sexual activity which was consensual, to the extent that girls of that age can be regarded as freely entering into a sexual relationship with a man old enough to be their grandfather.  But any consent which you obtained was a consequence of the grooming conduct that you engaged in with them.  The sexual offending of which you have been convicted was not consensual, even in that limited sense.  These were young girls, more worldly wise than might be appropriate for their age, who thought that they were taking advantage of you.  But there was a price to pay, and these girls were too young and vulnerable to be able to

resist when the time came.  You imposed yourself upon them sexually, sometimes when they were awake and conscious of what was going on, at other times when they were asleep or affected by the drugs or alcohol which you had supplied to them.

[9]      The harm that your offending has caused to your victims is very apparent from their victim impact statements.  I do not propose to describe those individually. Your victims describe the psychological effect on them, the mistrust of others engendered by your conduct towards them, and the effect on their ability to form and maintain appropriate relationships.  A recurring theme is that you have taken away their childhood or adolescence.

[10]     Effects of this sort are common among victims of this type of offending. They are one of the reasons why sexual offending is treated as extremely serious. An illustration of how profound and long lasting the consequences of sexual offending can be is the victim impact statement of the victim of the earliest offending.  The indecent assault against her was comparatively minor.   But it has had profound effects which have endured to the present, almost 30 years later.

[11]     I turn to your personal circumstances.  You are 66 years of age.  You have never been married although you have described a couple of steady relationships. You  have  been  self-employed  throughout  your  life  in  a  variety  of  businesses including panel beating and painting and reconditioning cars and motor homes.  You do not use alcohol or drugs.  You suffer from dyslexia, and the reports which were obtained earlier indicate that you have other disadvantages and obstacles in your life, which have limited you.   Despite those difficulties, you have been able to lead a useful life, with, as your counsel describes it, an unusual lifestyle.   Your counsel refers to the letters of support which he submits show a generous side to your nature.

[12]     You have a number of previous convictions for unrelated and comparatively minor offences.  You do not accept culpability for your offending and claim that all of your relationships were consensual.  The presentence report writer expresses the opinion that you appear to have difficulty in comprehending the boundaries that entering into intimate relationships with young and often vulnerable women impose. I agree with that view.  I think that difficulty is a significant factor in your offending.

[13]     I must fix a starting point for your sentence, having regard to all of the features of your offending.   The sentence which I must impose must reflect the totality  of  your  offending.    The  Court  of  Appeal  has  provided  guidance  for sentencing in the case of sexual offending in the case of R v AM.8   I propose to assess the seriousness of the totality of your sexual offending by reference to the culpability factors with which that Court identified in that case.  At this stage, I do so without

drawing a distinction between the different forms of sexual violation involved in your offending.   Counsel for the Crown submits that a number of the culpability assessment factors are relevant.  I address each of those factors.

[14]     There is planning or premeditation, to a greater or lesser degree, and of different sorts, in all of the offending.   It is, as counsel for the Crown submits, closely tied to the vulnerability factor, in that your planning involved seeking out girls from vulnerable backgrounds and troubled homes.  You groomed some of your victims in the way I have described over a period of time.

[15]     Vulnerability is an assessment factor.  Most of your victims were vulnerable in the ways that I have briefly described, principally due to their youth and lack of life experience and the large age discrepancy between them and you.  The victims in the third group were all troubled or rebellious teenagers with dysfunctional family relationships which made them vulnerable to your predation.   You increased their vulnerability by offending against them at times when their ability to resist your advances was lowered.  Some of them you initiated sexual contact with while they were sleeping.  Others you took in your campervan to a remote location where they had no means of withdrawing from your company.  To some of them you supplied drugs and alcohol to disinhibit them.

[16]     There was a significant breach of trust involved with the two victims in the second group.  You were in a position of care and control over the daughter of your partner, and the other victim was in your house because they were friends.   You exploited that position of trust to offend against them.  You also abused the trust of

your partner by denying the offending when confronted with it.  If that offending had

8      R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

been  reported  and  dealt  with  then,  later  events  might  well  have  played  out differently.

[17]     Counsel for the Crown submits that the level of violence is an aggravating factor.  I do not treat it as such in your case.  There is violence inherent in all acts of sexual violation.   That is reflected in the base sentence starting points, and, as a factor creating greater culpability, what is relevant is violence beyond that level of inherent violence.   That was not present in any case here, to a significant level. None of your victims offered physical resistance which you had to overcome in a violent way.

[18]     The scale of your offending and the period over which it extended, as I have described, is a significant aggravating factor.

[19]     Mr O’Donoghue refers to the harm to the victims.   As he notes, harm is inherent in offending of this type.  I have described the profound effect on all of your victims.  The harm inherent in the offending is reflected in the base starting points.  I do not consider that there is additional harm which justifies taking this factor expressly into account as an aggravating factor.

[20]     Your other offending, the drugs and the objectionable photographs, are so closely related to the sexual offending that I take them into account in fixing the appropriate banding and starting point for the sexual offending, so as to fix a single starting point for all offending.  That other offending is a significantly aggravating factor.

[21]     With that description of the various culpability factors, I come to consider where this offending sits in the spectrum for offending of this type.  The bands in R v AM differ according to whether the sexual violation consists of rape and other forms of penile violation, on the one hand, or violation by other forms of unlawful connection on the other.  Your offending fits within both categories.  In determining the banding for the totality of the offending, I consider first the bands for unlawful sexual connection, but taking into account the totality of the offending.  When the banding is viewed in that way, I consider that it falls in band 3.  The eight victims

aggravating  factors  which  I  have  described,  lead  me  to  the  view  that  is  the appropriate band.

[22]     To cross-check that assessment, I consider the rape bands.   Assessing the offences covered by those bands, and treating the other offending as aggravating factors, I consider that band 3 of the rape bands is also the appropriate band.

[23]     Band 3  offending  carries  starting  points  of  nine  to  18  years,  and  12 to

18 years, respectively.

[24]     I consider it appropriate to fix a starting point within band 3 of the unlawful sexual connection bands which has regard to the fact that some of the offending taken into account is rape, rather than to fix separate starting points and adjust the total. Approaching the matter in that way, I consider that a starting point towards the upper end of band 3 is required, to reflect the totality of the offending.

[25]     I fix a starting point of 16 years.

[26]     There are no personal aggravating factors which require an uplift to that starting point.

[27]     I turn to mitigating factors which might justify a reduction.   There is little scope for any allowance.  I take into account that you have not previously served a term of imprisonment. At your age, prison is likely to be harder for you than it might for a younger man.  I am able to make some limited allowance for that.  You have not expressed remorse for your offending, so I can make no allowance for that.  You claim that any sexual relationships were consensual.  I consider that mistaken view arises from the matter I mentioned earlier, namely your difficulty in comprehending the boundaries in entering into intimate relationships with young women.   I think that, taking a rather generous view towards you, that can be seen to reduce your culpability to an extent which makes possible a limited reduction.

from the starting point, leaving an end sentence of 15 years.

[29]     I must consider whether to impose a minimum period of imprisonment.   I may do so if I am satisfied that the normal minimum of one third is insufficient for the purposes of accountability, denunciation, deterrence and protection.  I think that the normal minimum would be adequate for the purpose of the protection of the community.  However, as your counsel responsibly and realistically recognises, the other purposes require a minimum period, having regard to the number of victims and the nature of the offending.  I consider that these purposes require a minimum of one half of the sentence.

[30]     The outcome then is that you are sentenced as follows:

(a)       On  each  of  the  counts  of  rape,  you  are  sentenced  to  15  years imprisonment.

(b)On each of the counts of unlawful sexual connection, to 15 years imprisonment.

(c)       On the count of attempted rape, to four years imprisonment.

(d)      On the counts of sexual grooming, to two years imprisonment.

(e)       On    each   of   the   counts   of   indecent   assault,    to   three    years imprisonment.

(f)       On each of the counts of making an indecent publication, to four years imprisonment.

(g)On each of the counts of supplying a Class C drug, to six months imprisonment.

[31]     All of these terms are to be served concurrently.

“A D MacKenzie J”