R v Walker

[2016] NZHC 1667

ORDER PERMITTING PUBLICATION OF EACH OF THE FOUR COMPLAINANTS' FIRST NAMES AND MAIDEN SURNAMES (BEING KIM WALKER, ROBYN WALKER, KAREN WALKER AND TRACEY WHITE) PURSUANT TO S 203(3) OF THE CRIMINAL PROCEDURE ACT

2011.  FOR THE AVOIDANCE OF DOUBT THE COMPLAINANTS' MARRIED SURNAMES ARE NOT TO BE PUBLISHED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-096-358 [2016] NZHC 1667

THE QUEEN

v

PETER RICHARD WALKER

Hearing:	22 July 2016
Appearances:	E J Walker for the Crown A D Couchman for the Defendant
Sentence:	22 July 2016

SENTENCING NOTES OF MUIR J

Counsel/Solicitors:

E J Walker, Meredith Connell, Auckland

A D Couchman, Barrister, Auckland

R v PETER RICHARD WALKER [2016] NZHC 1667 [22 July 2016]

Introduction

[1]      Mr Walker you are present here today to be sentenced on:

(a)       Three charges of indecently assaulting a girl under the age of 12; and

(b)      Eleven charges of indecently assaulting a girl between 12 – 16 years. [2]      You were found guilty of those charges by unanimous jury verdicts earlier

this year.  The same jury acquitted you on one charge of rape, one charge of incest and 11 charges of indecent assault or inducing indecent acts.   In so doing the jury undertook, as it was obliged to, a charge by charge analysis, finding in respect particularly of charges based on very early childhood memories and associated with alleged hypnotism, that the standard of proof was not satisfied.

Facts

[3]      Regrettably I must refer briefly to the facts of your offending today.   You have been convicted of indecent assault charges against all four complainants, three of whom were your biological daughters and one, their childhood friend.   Your offending spanned a period of approximately eight to nine years, from around 1976 to 1984, while your children were growing up with you and their mother, who is your ex-wife.

[4]      Kim is your eldest daughter.  You sexually offended against Kim from when she was approximately aged nine to when she was approximately aged 15.

[5]      The offending against Kim occurred while she was a young girl living in the family home and dependent on you.  You touched her genitalia while she was in bed with you, in the bathtub and the shower.  She recalled you rubbing around her clitoris when she was younger than 12, on more than one occasion.  That forms the basis of a representative charge.  She also recalled sitting on your lap in the Lazy-Boy chair and  feeling  your  penis  underneath  her,  while  you  had  your  hands  inside  her underwear touching her genitalia.  Her evidence was that that happened “countless times.”

[6]      When she was between 12 and 16 years of age, Kim recalled you coming into her bedroom and touching her genitalia, as well as putting your fingers inside her vagina.  This escalated to cuddling Kim from behind, with your penis between her legs while you touched her genitalia.

[7]      Overall, Kim’s evidence painted a picture of continuous offending, escalating in seriousness as Kim grew up.  That evidence was supported by the production of family photos of Kim in early adolescence including one of her entitled, in your own handwriting, “Our Little Hooker” and of birthday cards sent to you in her early teens with obvious sexual references.   There is little doubt in my mind that she was sexualised from a very early age.

[8]      Robyn Walker is your middle daughter.  You offended against her in a similar fashion from when she was around 13 to when she was around 16 years of age and while Robyn was also living in the family home.  The offending involved touching her genitalia and breasts and rubbing your penis against her.   The offending was regular, occurring, she said, most weekends.  You put your hands inside her pyjamas to rub her genitals when she was in bed or sitting on your lap in the Lazy-Boy chair.

[9]      Karen Walker is your youngest daughter.   You offended against her from about age seven to when she was around 14 years of age and while she also was living in the family home.  The offending included touching her genitalia and her breasts.  Karen gave evidence of lying in bed trying to be like a “little pencil” while you touched her groin area when she was younger than 12.  She also gave evidence that while younger than 12 you rubbed around her clitoris which she said occurred “easily more than five times”.   She recalls you groping her breasts when she complained of a sore back when she was between 12 and 16 years of age.

[10]     Tracey White was Kim’s childhood friend who was around 14 when you took the opportunity to indecently assault her by touching her genitalia also.   She gave evidence of standing outside your car when you put your hands inside her underwear and “wriggled your fingers”.  Significantly, none of the allegations of collusion or contamination which through counsel you directed at your daughters were available in her case.

[11]     As the Crown emphasised in its closing before me, the offending against your daughters was facilitated by a climate of fear within the household including threats that you could make people disappear or that you could have your wife institutionalised. As a result of those threats and your dominant physical presence in the household you ensured that the offending remained hidden from the outside world and could continue against each of your daughters in turn.

Victim Impact Statements

[12]     I wish to refer briefly to the victim impact statements.  It is appropriate that I acknowledge the victims of your offending.   All four have prepared moving statements for the Court and you have heard Kim read her own and that of Robyn. You have also heard Tracey White read hers.   For the purposes of my sentencing notes I briefly summarise what they said.

[13]     Kim is now a nurse and a mother but says, despite her successful façade, she remains a scared little girl who will never recover from the abuse she suffered at your hands.   She says she lives in a constant state of fear which no amount of counselling can address.   This extends to an inability even to shower while home alone unless the house is locked and she is having what she describes as a “brave day”. She feels saddened when she reflects on the fact that she and her sisters will never have a normal father/daughter relationship.   She describes a childhood characterised by your total control and constant fear.

[14]     Robyn says her childhood was one without innocence, security and joy as she also grew up in fear of you.  Her schooling was significantly impacted and she left with no education, confidence or ambition.  She turned to drugs and alcohol and at times was homeless and even contemplated suicide.  However, to her great credit she has turned her life around trying every day, she says, to be the best wife and mother she can be to her husband and children.   Nevertheless, she still requires anti- depressants and mood stabilizers to assist with her mental health.

[15]     In Tracey White’s victim impact statement she records that she was an émigré from England and, with few relatives in the country, she therefore regarded the

Walkers very much as family.   However, all that changed after you assaulted her, leaving her feeling, she says, guilty, dirty and abandoned.   She has suffered trust issues as a result of your abuse including in respect of those adults she would allow to have contact with her children.  She found the months leading up to the trial and the process of giving evidence very stressful.  That was obvious to me as the trial judge.   She says that she considers her “soul scarred” and this experience will be with her forever.

[16]     Karen also prepared a detailed victim impact report.   Although present in court she elected not to read it.   I summarise it briefly.   She speaks of traumatic memories of what she says were your “nail-bitten stumpy fingers” touching her and the fear she felt at the sight or smell of you.  She has had nightmares since she was a child and suffered from insomnia, depression and anxiety throughout her life.  As with Robyn and Tracey, the trial process was traumatic for her resulting in high levels of stress and resultant insomnia.  She is, however, now in a loving relationship with her husband and two children and feels that her life is beginning to move forward.

Personal factors

[17]     Referring to your personal position Mr Walker you are a 73 year old male of New Zealand European decent.   You have been a successful business person and provided your family with a reasonable standard of living during the 1970s and

1980s when you lived in Wellington.

[18]     You declined to participate in the interview which Corrections scheduled on

16 May 2016 and for that reason the Court does not have access to much information about your background and current attitudes.  I take into account, however, the fact that the interview was scheduled at a time when you were transitioning between counsel and you say were confused and uncertain as to what was involved in that process.

[19]     You have, however, made it clear that you maintain your innocence and that you  consider  all  the  complainants  are  either  liars  or  have  had  their  memories

contaminated over the years.   There is an indication that you may be pursuing an appeal.  That of course is your right but you will also appreciate that I am unable, in that context, to give any discount in respect of remorse or contrition on your part.

Sentencing Approach

[20]     I come then to consider what, in my view, is an appropriate sentence.

[21]     The approach which I follow is that established by the Court of Appeal in several well-known cases.1      In summary, it involves consideration of the circumstances and seriousness of the offending and setting what is known as the starting point with the aid of any comparable cases relating to offending in the same historic period.   I then need to consider whether there are any mitigating features relevant to you which might reduce that starting point.

[22]     I  acknowledge  at  the  outset  the  relevant  principles  and  purposes  of sentencing.   In my view the most important purposes engaged in this sentencing exercise are to hold you accountable for the harm done to your victims and to instil in you a sense of responsibility for and acknowledgement of that harm.  I am also mindful of the importance of denouncing your conduct but likewise ensuring your rehabilitation and reintegration in society during the latter part of your life.

Crown submissions

[23]     The Crown submits that the appropriate starting point for your offending is between five and six years’ imprisonment.   The Crown highlights as aggravating features:

(a)       The fact that there were four victims;

(b)The ages of the victims making them particularly vulnerable, being between 9 or 10 and up to 16 or 17 years of age;

1      R v Taueki [2005] 3 NZLR 372 (CA); R v Clifford [2012] 1 NZLR 23 (CA).

(c)       The gross abuse of trust resulting from your position as a father and as

someone entrusted by Tracey White’s parents with her supervision;

(d)The intrusive nature of the offending involving skin on skin contact with the genitalia of the victims;

(e)      The duration of individual instances of offending which was more than fleeting, sometimes extending over long periods of time, as in the case of the offending in the bed or Lazy Boy chair;

(f)      The  representative  nature  of  some  of  the  charges  indicating  the ongoing nature of the offending;

(g)      The period of the offending spanning over eight years;

(h)A  degree  of  premeditation  in  the  way  that  the  offending  was orchestrated;

(i)Attempts at concealment of the offending through threats; and very significantly in its submission

(j)       The emotional and physical harm inflicted on the victims who, the

Crown says, were robbed of their childhood innocence.

[24]     The Crown then submits that you are entitled to a six month discount to reflect your essentially clean criminal record up until this point in your life, as well as your relative old age and some health concerns.

Defence submissions

[25]     Mr Couchman made what I consider to be a very responsible submission on your behalf.  He acknowledges the aggravating factors I have referred to.  The role of your threatening behaviour is accepted.  He emphasises, however, that the range of starting points for this type of offending against children is, within the historical

context I am obliged to adopt, typically two to four years’ imprisonment and that only in exceptional cases would a starting point of five years be required.2

[26]     He submits that an appropriate starting point is between three and a half and four and a half years’ imprisonment, emphasising particularly that the majority of convictions relate to complainants over the age of 12 years.  He emphasises also the digital as opposed to penile nature of the violations which is certainly a relevant factor within the historical context that I must adopt.

Analysis

[27]     Sentencing in respect of historical sexual offences must be undertaken in accordance with the principles established in R v Accused (CA463/97)3 whereby the starting point for any sentence must be fixed in the context of the maximum penalty available at the time and generally by reference to any discernible sentencing regime in that era.4

[28]     The maximum periods of imprisonment imposed by the legislation in force at the time of your offending were appreciably lower than would apply today.  Indecent assault on a girl under 12 carried a maximum period of imprisonment of 10 years. Indecent assault on a young woman between 12 and 16 carried a maximum period of

imprisonment of seven years.5   These are the maximum penalties against which my

sentencing must proceed today.

[29]     It was said by Chambers J in R v W6  that the historical starting point for a single, what he termed, “serious” indecent assault that is with skin on skin contact

would be around two and a half years’ imprisonment.

2      Citing Jermyn v Police HC CHCH CRI 2006-409-000048 07 April 2006.

3      R v Accused (CA463/97) (1998) 15 CRNZ 602 (CA)..

4      At 609.

5      Crimes Act 1961, ss 133 and 134.

6      R v W (T000627) HC Tauranga T000672, 11 May 2001.

[30]     In R v Thorpe7 Woolford J helpfully distilled from previous Court of Appeal cases a number of culpability assessment factors for indecent assaults on children or young persons to which I refer being:

(a)       the age of the victim;

(b)      the vulnerability of the victim; (c)        the degree of abuse of trust;

(d)the intrusiveness and intensity of the act (that is whether the touching was through clothing or was skin on skin contact);

(e)       the duration of the offending act or acts;

(f)       repeated incidences of offending against the same victim; (g) the duration of a series of offences against the victim;

(h)      premeditation;

(i)       the harm occasioned to the victims; and

(j)       attempts at concealment.

[31]     Woolford J  noted that care must  be taken  where some  of these features overlap, as the age, vulnerability and abuse of trust factors often will in family related cases.   Care is also needed when a large number of factors are present to assess not only their presence but also the seriousness of each one of them.

[32]     Most of Woolford J’s factors are in play in this case.   The convictions are variously in respect of complainants under the age of 12 and between 12 and 16.  I

accept Mr Couchman’s submission that the majority of the convictions relate to

7      R v Thorpe [2912] NZHC 229.

complainants between 12 and 16 years of age.  That is a factor in my assessment but the overall character of the offending does remain serious.

[33]     Convictions have been  entered  in respect of indecent  assault on  all four complainants and all of the offending involved skin on skin contact, albeit short of penile penetration.  Moreover the offending has been over an extended period and contains elements of premeditation by way of “invitation” into your bedroom – such invitation in reality being more in the nature of a direction or instruction to your daughters as was in evidence before me.  Relevant also are attempts at concealment by way of various threats which are said to have been made and the duration of some of the individual acts which were certainly more than fleeting.

[34]     However, I disagree with the Crown submission that these factors merit a starting point as high as five to six years.  Where there is no penile penetration the historic cases indicate that only in very exceptional circumstances would a starting point as high as that be warranted8 and I note that the principal case the Crown relied on for its higher starting point was one actually involving rape.9   The historic cases establish a significantly lower range of starting points for offending falling short of penile penetration.10   This can be contrasted with the modern approach as set out in

the tariff decision of R v AM.11

8      Jermyn v Police HC CHCH CRI 2006-409-000048 07 April 2006 per Fogarty J where his Honour stated that “I read R v Lowe (CA134/01, 26 February 2002) as reinforcing a number of prior dicta of the Court of Appeal that in the case of sexual offending against children, short of penetration, committed in the 70s, the sentencing range is normally 2-4 years. Four years is at the top end of the range and it would only be an exceptional case where there would be a starting point at five years” at [10].

9      R v KJB HC Rotorua CRI 2004-25-2500, 9 September 2005 where a starting point of 12 years

was taken for prolonged sexual offending against the offender’s three daughters including raping one daughter from the age of eleven on a weekly basis for a period of seven years until she left home.

10     R v LTI [2014] NZHC 112; the defendant pleaded guilty to three charges of doing an indecent act with a girl under 12 years old and two charges of indecently assaulting a girl under 12. The

offending occurred against his stepdaughter between 1977 and 1978.  The offending involved

getting the victim to masturbate him and putting his penis in her mouth, as well as touching the victims genitalia on several occasions.   Katz J adopted a starting point of two years and six months’ imprisonment. See also Jermyn v Police, above n 10; De Reepa v R [2012] NZCA 617; R v Vautier [2009] NZCA 435; and R v Dean [1991] 3 NZLR 444 (CA).

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

[35]     However, I do agree with the Crown’s submission that in comparison with Mayo v R12 your offending is more serious.  In that case the defendant was convicted of five historical charges of indecency with a girl aged between 12 – 16 years of age and  four  historical  charges  of  indecency  on  a  woman.    Both  charges  carried maximum penalties of seven years’ imprisonment.  There were three victims and the offending occurred over a period of seven years when the victims were staying with

Mr Mayo and his wife.  The offending involved skin on skin contact, touching of breasts and genitals and inducing the girls to touch his penis. A starting point of two years nine months was upheld by the Court of appeal as at the higher end of the range, but not excessive.

[36]     Your offending is more serious than that in Mayo v R because in that case the victims were all over 12 years of age and there were only five charges.  The three charges you face relating to indecent assault on a girl under 12 carry a 10 year maximum penalty in comparison to the seven year penalty faced in Mayo.

[37]     R v Mokalei is a case probably closer to yours, albeit again less serious having  regard  (primarily)  to  the  ages  of  the  complainants.13   In  that  case  the defendant pleaded guilty to six charges of indecent assault.   The charges were in respect of three different complainants and spanned the period from 1983 to 1984. The first complainant was aged 13 years and the offending included touching her genitalia, inserting a finger into her genitalia, putting her hand on his penis and

rubbing his penis against her.  The second complainant was aged between 13 and 14 years.   The offending included touching her genitalia. The third complainant was also a family friend and 13 years of age.   The offending included touching her genitalia and putting his fingers in her vagina.  The Court of Appeal upheld a three year starting point in that case.

[38]     Your offending likewise involved digital penetration and skin on skin genital contact.   In Mokalei the victims were family friends whereas in your case the offending was primarily against your own daughters where the resultant breach of

trust may be considered even greater.  Moreover all the offending was over a longer

12     Mayo v R [2016] NZCA 34.

13     R v Mokalei CA322/00, 30 November 2000;

period than in Mokalei.  In Mokalei the victims were also all older than 12 years and therefore the charges attracted the lower maximum penalty of seven years imprisonment.

[39]     Having considered all these cases and others which I identify in footnotes to my sentencing notes, I adopt a starting point of four years’ imprisonment.   This reflects the historic sentencing patterns at the time for indecent assaults but also reflects the serious aggravating factors in your case which, in particular, are the gross breach of trust involved in sexual offending against your biological daughters and the duration of the offending which continued throughout their childhoods.

Personal circumstances

[40]     I now come to  consider  your personal  circumstances  and any mitigating factors.  There are no personal aggravating features of your offending that warrant any uplift in my sentence.   Such previous convictions as you have are totally unrelated to the charges you face today and are now very much historical.

Good character discount

[41]     In relation to good character Mr Couchman submits that for a lengthy part of your life you have made highly constructive contributions to society and have been crime free.   He submits that a discount approaching 12 months is appropriate in respect of this and issues relating to your health and age.  The Crown accepts that you are entitled to a good character discount.

[42]     I do have some difficulty with the concept in this case.  In King v R where a St  John’s Ambulance  driver  who  sexually  abused  passengers  in  his  ambulance appealed his sentence on the grounds that, among others, the sentencing Judge did not give him a character discount, the Court of Appeal rejected the appeal for reasons

that do have some application in this case.14   It held that Mr King was in a position

of trust which he had abused to facilitate his offending.   Further, Mr King had offended  over  a  period  of  eleven  years,  undermining  any  real  claim  to  good

character.  Finally, the way Mr King conducted his defence was said to undermine such a claim.  Not only did he assert that the complainants were lying but he lied to protect himself and to discredit the victims’ behaviour which the Court of Appeal said disqualified any credit for good character.15

[43]     Likewise in this case you abused the trust that your biological daughters placed in you as their father over an extended period of time.  For that period you elevated your own sexual gratification over the entitlement of your daughters to live in a loving and protected environment.  Such considerations necessarily qualify any good character discount to which you might otherwise be entitled.  Likewise the way in which you conducted your defence by alleging, and maintaining, as you do to this day, that your daughters and Tracey are liars is a factor I may take into account in this context, albeit mindful of the fact that you do of course have constitutional rights to appeal.

[44]     However, I do accept Mr Couchman’s submission that as a 73 year old, even allowing for your youthful indiscretions and this period of offending, I can recognise at least 45 years of constructive contribution to society and of a crime-free life.  That submission  is  certainly  supported  by  the  reference  which  I  have  received  this morning from Mr Michael Green who has known you for a period in excess of 40 years and who says that he regards you as a very hard working and honourable person and, in his assessment, of good character.

[45]     I intend to deal with the good character discount globally in the context of other discounts.  So it is at this point in my sentencing I address the second relevant consideration which is your age and health.

Old age and ill health

[46]    Mr Couchman says that the global discount for which he contends also recognises age and health issues.  The Crown acknowledges that a discount may be available in this respect.

[47]     You suffer from heart problems and diabetes and immediately prior to your trial you were hospitalised in Australia and as a result unable to answer your bail conditions through no fault of your own.  Mr Couchman also records your concern that you are having difficulties with your memory and submits therefore you may be in cognitive decline and possibly suffering from very early symptoms of Alzheimers disease.  There are no medical reports in this respect.  Mr Couchman emphasises the difficulty in obtaining such reports given the fact that you have been held in custody since the time of your conviction.

[48]     I accept, for the purposes of this sentencing that you do have some significant health problems.  You are also 73 years of age.  While not an advanced age you are clearly now in the latter part of your life.

[49]     Age and health can be considered by me if the result of not recognising them would be to impose a sentence which is disproportionately severe to your personal circumstances.16    I am prepared to accept that imprisonment does have such a character in your case given both your age and health.  However, I must also bear in mind directions that I must not make too great an allowance in this respect and thereby shrink from my duty in sentencing you, however unpleasant that may be.17

[50]    In assessing what discount is appropriate I also recognise the particular difficulties faced by you as a result of the fact that your imprisonment will be served in New Zealand whereas your wife has had, necessarily, to return to Australia where your family home is.  By contrast I do not place particular weight on the fact that you are as a result of this sentence unable to maintain your business activities in Australia; that is not a disproportionate impact of imprisonment it is just one of the inevitable consequences of it.

[51]     Overall, in weighing each of these factors of age, health and character I consider that a reasonably generous discount is appropriate in your respect.  I assess that at nine months. As I have already indicated no discount is available in respect of

remorse.

16     M (CA91/2012) v R [2013] NZCA 325 at [52]; Hastie v R [2011] NZCA 498.

17     Attorney-General's References Nos 37 & Ors cited in M (CA91/2012) v R [2013] NZCA 325 at

[55].

[52]     Mr Walker, please stand now thank you.

Final Sentence

[53]     The final sentence that I arrive at is one of three years and three months’

imprisonment which will be structured as follows:

(a)      On the three charges of indecent assault on a girl under 12 years of age you are sentenced to three years and three months’ imprisonment for each charge, to be served concurrently.

(b)      On the eleven charges of indecently assaulting a girl between 12 and

16 years of age you are sentenced to three years and three months’

imprisonment for each charge, again to be served concurrently.

(c)      For the avoidance of doubt the sentences that I have referred to in paras [53](a) and (b) of my sentencing notes are themselves to be concurrent.  You will therefore serve a total sentence of three years and three months’ imprisonment.

[54]     Mr Walker, please stand down.

Muir J