R v Walker

[2019] NZHC 710

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-055-002206

[2019] NZHC 710

THE QUEEN

v

ROBERT ARNOLD WALKER

Hearing:	5 April 2019
Appearances:	E McCaughan for Crown N Cooke for Respondent
Sentenced:	5 April 2019

SENTENCING NOTES OF VENNING J

Solicitors:           Kayes Fletcher Walker, Manukau Counsel:    N Cooke, Auckland

R v WALKER [2019] NZHC 710 [5 April 2019]

[1]    Robert Arnold Walker you are for sentence in this Court having been convicted in the District Court following a jury trial on one representative charge of sexual violation by rape, one charge of attempted rape, and one charge of indecent assault.

[2]    The charge of rape carries a maximum 20 years’ imprisonment. The other charges carry maximum sentences of 10 and seven years respectively.

[3]    District Court Judge Patel declined jurisdiction to sentence you pursuant to    s 90 of the Sentencing Act 2002 as he believed that a sentence of preventive detention should be considered by this Court.1

[4]    Your offending was against a vulnerable victim. At the time of the offending she was aged between 16 and 18 years old. You were aged between 68 and 70. More importantly and relevantly she was also vulnerable due to her mild intellectual disability.

[5]    In declining jurisdiction the District Court Judge helpfully set out a number of factual bases on which sentencing could proceed in this Court. They are:

(a)the victim was born on 2 May 1999. Her mother noticed that she had learning difficulties from when she was five;

(b)no formal diagnosis of her issues was made until March 2016. At that time the victim was assessed as having a global learning disability by a registered psychologist. She had a full-scale IQ of 44. A person is intellectually disabled if they have an IQ of less than 70. Her cognitive ability was less than 99.9 per cent of children in her age group. She was assessed as having mild intellectual disability.

(c)After the diagnosis the victim’s mother told you, as a friend of the family at the time, that the victim had a global learning disability. She also told you a number of times that the victim was a bit slow in learning.

1      R v Walker [2018] NZDC 24264.

(d)You well knew the victim did not have the same intellectual ability of other children her age but there was no evidence you knew of the detail of the psychological assessment and the precise details of her impairment.

(e)You have known the victim’s mother since about 2010. She was introduced to you through her former husband.

(f)From time to time after 2010 you visited the victim’s home on the weekends. You occasionally stayed overnight and after the victim turned about 11 or 12 there were times when you would take her out with you.

(g)The offending against her commenced after 2 May 2015 when the victim turned 16.

(h)On 26 August 2017 when the victim was 17 you visited her. She accompanied you to The Warehouse at Takanini and you then drove her to a spot near Ardmore Airport. An audio recording was made of what subsequently occurred. That supported the charges of indecent assault and attempted rape.

(i)The conviction on rape indicated the jury was satisfied you had raped the victim on at least one occasion not covered by the charges. The conviction was likely based on an admission by you in that audio recording that you had had intercourse with the victim previously.

[6]    The indecent assault involved your licking or kissing the victim’s breast without her consent. The attempted rape was confirmed by the transcript of the audio. You were seeking to force her to have intercourse without her consent but you apparently ejaculated before penetration.

[7]    The real issue in your case is whether a finite sentence of imprisonment or a sentence of preventive detention should be imposed. Before considering the issue of

preventive detention I consider the appropriate finite sentence if that were to be the end result.

[8]    The lead charge is that of rape. The starting point on a charge of rape is governed by the guideline judgment of the Court of Appeal in R v AM.2 Both counsel agree the offending in your case falls somewhere in category 2 of that case. The Crown submit a starting point of between 11 and 12 years’ imprisonment is required to reflect the rape conviction and the other offending associated. The Crown says that should be uplifted to take account of your previous offending so that an appropriate finite sentence would be in the region of 11½ to 13 years’ imprisonment.

[9]    Mr Cooke submits the appropriate starting point is six and a half years and with an uplift submits a finite sentence of seven years would be appropriate. He accepts a minimum period of imprisonment would also be appropriate but argues against preventive detention.

[10]   Mr Cooke argues that the offending was not violent and that you effectively were cajoling the victim and there were no threats. That overlooks the vulnerability of the victim to you in the circumstances.

[11]   In determining the appropriate starting point for your sentence I take into account the aggravating features of your offending. There are a number. First and foremost is that vulnerability of the victim. She was vulnerable because of her age and the age gap between you and her. You were old enough to be her grandfather. Importantly she was also vulnerable due to her intellectual disability, a fact known to you, even if you did not know the exact details of that disability.

[12]   Given your relationship with her family your offending also involved a significant breach of trust.

[13]   The offending was also planned to the extent you took steps to remove the victim from her home and put her in circumstances where you could offend against her.

2      R v AM [2010] NZCA 114.

[14]   The harm caused by your offending is apparent from the victim impact statements. The victim’s mother has attended counselling to try and deal with the impact of your offending on her daughter and her relationship with her daughter. The victim herself has confirmed she was confused as she understood you to be an uncle and someone who could be trusted. Your offending has made her very sad. It has affected her attendance at school. She suffers repeated nightmares and flashbacks. She cannot relax and enjoy being out in the local area because the places remind her of what you did. She no longer feels safe when alone in public.

[15]   Having regard to the above and the cases of R v Stojanovich, R v Hetherington and R v Toa I consider an appropriate starting point for the rape to be nine years and to reflect the totality of your offending an adjusted starting point of 10 years is required.3

[16]   An uplift is required to reflect your previous offending. You have previous convictions which display a propensity for this type of offending.

[17]   You were sentenced initially in 1994 for an indecent assault on a female aged between 12 and 16. Then, in 2009 you were sentenced on 19 charges of offending against five girls under the age of 16. That offending occurred between November 2002 and February 2007. The modus operandi was the same as in the present case. It was to befriend families, then isolate the victims in circumstances where you could offend against them. At that time you were sentenced to five years’ imprisonment with a minimum period of two and a half years’ imprisonment. I would add an uplift of nine months to reflect that previous offending. That is not to punish you a second time for the earlier offending but rather to reflect that you have a propensity to offend in this way and continue to offend in this way. That would lead to an end sentence of 10 years, nine months before taking account of any mitigating factors.

[18]   Mr Cooke was really unable to suggest any personal mitigating factors in his submissions. Counsel did refer to a medical report which suggests you will need some

3      R v Stojanovich [2009] NZCA 210, R v Hetherington [2015] NZCA 248; and R v Toa [2014] NZHC 2279.

relatively minor medical treatment within six months. I do not consider that to be particularly relevant.

[19]   There are no mitigating factors apparent from the reports that the Court has had made available to it.

[20]   The pre-sentence report confirms that you exhibit no remorse about your offending. You sought to minimise it. Your offending is said to relate to your lack of insight and your belief and feeling of self-entitlement. You have an ability to identify victims who are vulnerable and take advantage of them.

[21]   There are no personal mitigating circumstances. The end finite sentence if one is to be imposed would be 10 years, nine months.

[22]   In the ordinary course of events if a finite sentence was imposed you would be eligible to apply for parole after serving just over three and a half years. In my view that would be manifestly inadequate to reflect the factors set out in s 86 of the Sentencing Act. Those factors include not only the protection of the community but also the need to denounce your offending, hold you accountable, and to deter you from engaging in similar conduct in the future. A minimum non-parole period of six years, three months would be appropriate in your case if a finite sentence were imposed.

[23]   That brings me to the real issue in the present case which is whether the indeterminate sentence of preventive detention should be imposed.

[24]   The purpose of such a sentence is to protect the community from offenders who pose significant and ongoing risks to the safety of its members. You have been convicted of a number of qualifying offences and you also qualify because of your age. The remaining issue is whether the Court is satisfied that you are likely to commit another qualifying sexual offence at the end of your sentence on release from prison.

[25]   In considering that issue the Court is required to take into account factors that are set out in s 87(4) of the Act. They are:

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

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

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

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

Pattern of serious offending

[26]   You undeniably have a pattern of serious offending as disclosed by your offending history. This is the third occasion where you have been before the Court for sexual offending of this nature. The first was in 1994. Then in 2009, as I said, you were convicted of multiple offending against five victims over a lengthy period of time between 2002 and 2005. Shortly after your release from prison you engaged in the relationship with the victim and her family which led to your current offending.

Seriousness of harm to the community

[27]   The seriousness of harm to the community is obvious in your case. Your recent offending has caused obvious distress and long-term effects on the victim and her mother. The effects of your offending are wider than that. You have offended against a number of children and young girls in the past. The community is affected by the impact on them and the impact on them and their future.

Information indicating a tendency to commit serious offences in the future

[28]   The Court has been assisted by reports from a psychiatrist and a psychologist for the purposes of assessing the Crown’s submission that preventive detention is required in your case.

[29]   Dr Duggal, the consultant psychiatrist, considers that arriving at a conclusion about your tendency to commit a serious offence at some point in the future based on current information is fraught. While he considered you were at high risk of sexual recidivism if released into the community at this point in time he was not prepared to speculate as to the future. There are important limitations on being able to extrapolate

the risk assessment into the distant future. Dr Duggal did acknowledge some risks factors are modifiable, particularly if you are likely to spend a significant period of time in prison.

[30]   Mr Gupta, a consultant clinical psychologist, considered you had a propensity to sexually offend against pubescent aged females who are vulnerable either in age or development delay. The high risk you pose of sexual reoffending in a similar manner at this time could possibly be modified by treatment within a prison custodial context.

The absence of or failure of efforts by you to address the cause or causes of your offending

[31]   Counsel submitted that there was no real evidence that you declined to engage in programmes. However the reports before the Court suggest you were reluctant to undergo programmes whilst in prison. You apparently did suggest that you would be prepared to undergo individual programmes but it is not for you to assess what is the best programme for you to undergo.

[32]   The report of Mr Gupta confirms that the psychological reports to the Parole Board in 2011 and 2012 indicated that you had explicitly declined to attend special treatment unit programmes for child sex offenders as you did not believe you required that level of intervention. Your refusal to undergo such treatment is reflected in your current attitude recorded in the pre-sentence report.

The principle that a lengthy determinate sentence is preferable if it provides adequate protection for society

[33]   The Court must always consider when considering preventive detention whether a lengthy determinate sentence will be preferable and whether the community can be adequately protected from the risk of further serious sexual offending by you by a lengthy sentence.

Conclusion

[34]   The Court is required to balance and consider those factors. In doing so it is clear that despite your current age of 71 you still present a high risk of serious sexual

offending at this point in time. You were able to offend in serious ways between the ages of 68 and 70. Your attitude remains of major concern. The issue is whether you will still be likely to commit such offending after serving a lengthy determinate sentence.

[35]   One might reasonably expect your propensity for offending in this way would diminish with age. But as Mr Gupta observed, while sexual offending risk is ordinarily considered to be lowered with an age release over 60 years it cannot be taken as a singular marker for a reduction in risk for you at this time, a point also confirmed in Dr Duggal’s report. The issue the Court is faced with is that you have repeated your offending very recently despite your age. It is also significant you have not taken advantage of the programmes available to address your offending. More than that you have refused to engage. Your attitude, as I say, remains a particular concern.

[36]   In your case, Mr Walker, I am satisfied that the protection of the community requires the imposition of a sentence of preventive detention. Old age or increasing age is not in your case a protective factor. The reports support that conclusion. The minimum term imposed must also provide for the safety of the community, taking into account your age and the current and foreseeable risk you pose.

[37]   Please stand. You are sentenced to preventive detention for the offences in which you have been convicted. You are to serve a minimum term of imprisonment of six years, three months.

[38]Stand down.

Venning J