R v Walker
[2015] NZHC 1525
•2 July 2015
NOTE: PUBLICATION OF NAME, ADDRESS, OR OCCUPATION OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204
OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2014-087-1944 [2015] NZHC 1525
THE QUEEN
v
JOHN EDMOND WALKER
Hearing: 2 July 2015 Counsel:
A J Pollett for Crown
R O Gowing for defendantJudgment:
2 July 2015
SENTENCING NOTES OF KATZ J
Solicitors: Ronayne Hollister-Jones Lellman, Crown Solicitor, Tauranga
Gowing & Co Lawyers limited, Whakatane
R v WALKER [2015] NZHC 1525 [2 July 2015]
Introduction
[1] Mr Walker, you have pleaded guilty to 29 charges involving sexual offending against seven young girls, over a 15 year period. In particular, you have pleaded guilty to:
(a) fourteen charges of sexual violation by unlawful sexual connection, which has a maximum penalty of 20 years’ imprisonment;1
(b)seven charges of indecent assault on a female under 12 years, which has a maximum penalty of 10 years’ imprisonment;2
(c) six charges of indecent assault on a female aged 12 to 16 years, which has a maximum penalty of seven years’ imprisonment;3
(d)one charge of knowingly making objectionable publications, which has a maximum penalty of 10 years’ imprisonment;4 and
(e) one charge of intentionally making an intimate visual recording, which has a maximum penalty of three years’ imprisonment.5
Circumstances of the offending
[2] You have pleaded guilty on the basis of the police summary of facts and I
therefore accept that document as accurately setting out the details of your offending.
[3] You are a single man aged 67 years. Prior to your arrest on the charges before the Court, you lived alone, in a house with a swimming pool, trampoline and swing set. Children in the neighbourhood were welcomed, or perhaps I should say lured, onto your property where they were able to use your recreational facilities, as well as your computer. You also offered them treats or gifts (such as chocolates,
lollies, make up sets or fake jewellery). This was all part of your grooming
1 Crimes Act 1961, s 128 and s 128B.
2 Crimes Act 1961, s 132(3).
3 Crimes Act 1961, s 134(3).
4 Films, Videos and Publications Classifications Act 1993, s 123(1)(a) and s 124.
5 Crimes Act 1961, s 216H.
behaviour, through which you ingratiated yourself with vulnerable young girls, at least some of whom appear to have come from disadvantaged homes.
[4] Your victims were girls from your neighbourhood as well as the daughters or grand-daughters of friends. Seven victims have been identified, with the offending spread over some 15 years. The police summary of facts uses pseudonyms for the names of the various victims, to protect their identity. I will do the same.
[5] Your earliest offending dates from between 1999 and 2001, when “Emily” first came to your prior address, with family and friends, to use your pool. She was aged 8 or 9 at the time. You offered her chocolate in exchange for naked photos, which she declined. Two days later, when she returned to use your computer, you touched her breasts under her top.
[6] Later, in 2003 to 2004, when Emily was aged around 11 to 13, she commenced visiting you at your new address. During one visit, you intercepted her as she was walking to the bathroom and pushed her into your bedroom, locking the door behind her. You undressed her and sexually assaulted her for between 30 and
40 minutes, by kissing her neck, breasts and vagina. You performed oral sex on her and digitally penetrated her vagina. You pressed down on her stomach to control her as she was thrashing around trying to escape. You masturbated yourself throughout the assault. You stopped only when motion sensors you had installed on your driveway informed you that a visitor was approaching the house.
[7] When Emily returned to the house some months later, you again locked her in a bedroom. You made her perform oral sex on you, to the point of ejaculation. When she resisted, you slapped her hard on the head. Emily records another instance of you undressing her, kissing her and licking her vagina. She also recalls noticing a camera lens positioned through a hole in the wall of your pool changing shed.
[8] “Olive” was another one of your victims. Her family were close friends of yours. You offended against her repeatedly. You made her touch your penis, you sucked on her breasts, licked her vagina and ejaculated onto her stomach. You also took intimate photos of her and made her perform oral sex on you on six occasions.
[9] Offending against other victims were similar in nature. You required the victims to perform oral sex on you. You also licked, touched and digitally penetrated their vaginas, touched and sucked on their breasts and slapped them on the breasts and vagina. These offences all occurred multiple times; although with some girls the offending consisted only of smacks and some inappropriate touching, on more “one-off” occasions. At the time of your offending your victims ranged in age from 8 to 14.
[10] On 18 November 2014, the police executed a search warrant on your house. They discovered what they described as a “vast” amount of confectionery located throughout the house, large amounts of cosmetics and fake jewellery, an operating police radio scanner set to the local police frequency, a number of cameras, computers, hard drives, cell phones and SD memory cards, and a peephole camera and a concealed alarm clock camera in the bedroom. This equipment was analysed, and around 31 illegal images were discovered of young girls engaged in sexual acts with you, and of a young girl’s exposed genitals.
[11] A number of your victims, and their parents or caregivers, have provided the
Court with victim impact statements. They make harrowing reading.
[12] The mother of one of your victims describes how she has had to relocate her entire family to a new town, in order to make a fresh start. This has been a huge disruption for all of them and they have had to take out a loan to cover the costs. She says that words simply cannot express the hurt and anger their whole family has experienced, alongside their “perfect innocent baby girl”. Their daughter requires constant support and reassurance and cannot now sleep without the light on. Your actions have made her deeply fearful of older men.
[13] One of your earlier victims, who is now an adult, says that your actions have impacted on her relationship with her husband and she is often fearful of other men. She has self confidence and body issues. Although she has had counselling she says she cannot forgive, forget or get past what you did to her. Memories of your abuse flood back and trigger crippling depression. Some days she finds it difficult to get out of bed or function in her day to day life.
[14] Another victim, who is still a child, reports that some days she just feels like climbing into a hole and never coming out of it. She is going to counselling but says of you that “he messed me up so much that it’s gonna take a long time to repair myself”. She says you made her feel dirty and gross and when she sees a male she does not know she runs away.
[15] The caregivers of one of your younger victims report that she has gone from being a bubbly, loving and outgoing little girl to someone who is very angry and disturbed. Her grades have dropped dramatically at school. She has started bullying other children.
[16] Another victim used to be outgoing and loved kapa haka and sports. Now she is withdrawn and clingy and will only interact with those very close to her. She cries all the time and cannot sleep.
[17] The caregivers of other victims report that they thought you were a good friend. They are devastated to find that you abused their children. They see that as the ultimate betrayal of trust and friendship. They find it incomprehensible that you could have abused their trust by offending against their children.
[18] Mr Walker, in sentencing you I am required to hold you accountable for the harm you have done to your victims and to the community generally. This is a case where there is a clear need to deter and denounce your conduct in the strongest possible terms, and to protect the community from you going forwards.
Setting a starting point
[19] The first step in determining an appropriate sentence is to set a starting point, based on the circumstances of your offending. I will then consider any relevant aggravating or mitigating features personal to you that might require me to adjust that starting point.
[20] The lead charges in this case are the sexual violation by unlawful sexual connection charges, which includes the penetration of your victims’ mouth with your penis.
[21] The Court of Appeal has set out guidelines for sentencing in sexual violation cases in a decision called R v AM.6 That case sets out “bands” of sentences for rape and unlawful sexual connection involving penile penetration of the mouth. The appropriate sentencing band is determined by reviewing the number of aggravating features of the particular offending, together with the degree of seriousness of each aggravating factor.
[22] The key aggravating features of your offending are:
(a) Planning and premeditation:7 You groomed your victims in what was clearly a very calculated way. You used chocolate, lollies, your computer, gifts and other attractions at your house to create an atmosphere in which young children, particularly girls, felt comfortable. This must have required a relatively significant level of planning and premeditation. The fact that you had motion sensors and cameras installed around the house to warn you of unexpected visitors also indicates a high level of planning and sophistication in your offending. Having a police scanner in your home, set to the local police frequency, also suggests a high degree of planning and
premeditation.
6 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
7 R v AM, above n 6, at [37]; Sentencing Act 2002, s 9(1)(i).
(b)Violence and detention:8 There was some degree of violence, such as slapping the head and grabbing the neck of two of the girls, in addition to the violence inherent in any act of sexual violation. I accept, however, that the violence involved was at the lower end of the scale. Rather, you tended to rely on psychological manipulation and other forms of grooming behaviour. There was, however, an element of detention in locking your bedroom door while you were abusing your victims. This restricted their freedom to leave, while also protecting you from the possibility of discovery.
(c) Vulnerability of victims:9 Your victims were young and particularly vulnerable. Indeed one of the psychiatric reports before the Court suggests that you have deliberately targeted children with factors that made them vulnerable to sexual offending, such as lack of parental oversight, susceptibility to being influenced by grooming, or those too young to fully understand or resist your inappropriate interactions.
(d)Harm to the victims:10 As noted in R v AM, some level of harm is always inherent in offending of this type. In this case there has been no long term physical harm to the victims. There has, however, been very significant psychological harm to them and to their families, as is apparent from the victim impact reports I have already referred to.
(e) Scale of offending:11 The scale of your offending was significant.
There were multiple victims, with more than one incident of offending involved for six out of the seven victims. For many of your victims the abuse occurred over a prolonged period of time. Further, R v AM specifically notes that associated degradations, such as videotaping and photographing the offending (as occurred here) can increase the
scale of offending.
8 R v AM, above n 6, at [38].
9 R v AM, above n 6, at [42]; Sentencing Act 2002, s 9(1)(g).
10 R v AM, above n 6, at [44]; Sentencing Act 2002, s 9(1)(d).
11 R v AM, above n 6, at [47].
(f) Breach of trust:12 The parents and caregivers of your victims trusted you and allowed their children to play unsupervised at your house. Some of your victims were the children or grandchildren of people who considered themselves to be longstanding friends of yours. Many others were neighbours.
[23] It is common ground that, taking into account the aggravating features of your offending that I have just outlined, band 4 of the rape sentencing bands in R v AM is appropriate. That is the highest sentencing band, which provides for a range of between 16 to 20 years imprisonment. Although it is described as a rape sentencing band, it also extends to cases where the lead offence is penile penetration of the mouth. Three of the seven victims were subject to such abuse in your case.
[24] The Crown contends for a starting point of 18 to 19 years imprisonment, while your counsel contends for a slightly lower starting point.
[25] The closest comparable case I have found is R v Laurence.13 In that case, the offender was sentenced in relation to 65 offences, including 15 charges of sexual violation by unlawful sexual connection, 20 charges of performing an indecent act on a boy under 12 and 7 charges of performing an indecent act on a boy between
12 and 16. The offending was against eight victims, over a ten year period, and involved predatory behaviour which consisted of befriending young boys, inviting them to his house with promises of playing with a Playstation, food and cigarettes before sexually abusing them. Most of the abuse, which included anal intercourse with three victims, was digitally recorded. Some of the victims were abused on just one occasion, and others over a number of years. That case was seen as being at the lower end of band 4, requiring a 16 year starting point.
[26] R v Senior also bears some similarity to your case. In that case the offender was charged with two counts of rape, ten counts of unlawful sexual connection, and seven counts of indecent assault amongst other offending.14 There were nine
complainants, with offending over 25 years. The offending involved the daughter of
12 R v AM, above n 6, at [50], Sentencing Act 2002, s 9(1)(f).
13 R v Laurence [2013] NZHC 956.
14 R v Senior [2015] NZHC 236.
the offender’s partner (aged 9 - 12) and one of her friends who would regularly stay the night, involving oral sex and digital penetration. A second “group” of offending involved six girls between 14 and 16 who were groomed via gifts, money and supply of cannabis and alcohol. That offending escalated to rape and other sexual violations. The offender also took explicit photographs of two of the victims. The aggravating factors were very similar to your case. The starting point fixed was within band 3 of R v AM, and warranted a 16 year starting point.
[27] Taking into account the aggravating features I have identified, and the broadly comparable cases I have referred to, I consider that a starting point of
16 years imprisonment is appropriate on the lead charge of sexual violation by unlawful sexual connection. In my view that starting point also appropriately reflects the range of sexual offending that you engaged in with the various victims, as I have considered the range of activities as one of the factors in assessing your
culpability. This approach was endorsed by the Court of Appeal in Baldwin v R.15
For example, I have taken into account the element of degradation in filming your victims, when considering the aggravating features of your offending.
Adjusting the Starting Point: Factors relating to the Offender
[28] I now consider the extent to which the starting point of 16 years imprisonment should be adjusted to reflect any personal mitigating factors.
[29] You are 67 years old and retired. You have no prior convictions. Your marriage broke up a number of years ago, and you do not appear to have had any relationships with adult women since that time. You suffer from diabetes and diabetes related conditions such as high blood pressure. However, you have no significant medical conditions that are expected to affect your ability to serve a prison term.
[30] You are clearly entitled to a credit for your guilty plea, which has spared your victims the ordeal of a trial. I note that your guilty plea appears to have been entered
almost as soon as you were confronted with the charges, after a brief denial that you
15 Baldwin v R [2010] NZCA 472 at [28] – [29].
had done anything wrong. A 25 per cent discount is therefore appropriate, in accordance with the usual principles.
[31] Your counsel submits that an additional discount of 5 per cent is warranted to take account of your remorse, shame, previous good character and the fact that your age and health issues will make a term of imprisonment harsher for you than for a younger man.
[32] I have not been persuaded that any further discount is appropriate. A previous good character discount is not warranted when your offending extended over a 15 year period and involved multiple victims. The long term nature of your offending suggests this was far from “one-off” behaviour in the context of an otherwise blameless life. Nor do I believe that you are genuinely remorseful or have any real insight into the depth of harm and suffering you have inflicted on your victims, although no doubt you are very sorry you got caught. Your pre-sentence report indicates that you have demonstrated no genuine remorse. Instead, and incomprehensibly, you continue to try and attempt to minimise your behaviour and shift the blame to others, including your victims.
[33] Age and ill-health can be considered in sentencing. However, age alone is not necessarily a mitigating factor where there is no evidence that it will make going to prison any greater a punishment.16 Further, the Court of Appeal has made it clear that even ill-health must be shown to be aggravated by, or not capably managed in the prison environment to be a factor.17 I am confident that your diabetes will be able to be appropriately managed in a prison environment.
Preventive Detention
[34] This brings me to the issue of preventive detention. As you are aware, although the Crown did not originally seek a sentence of preventive detention, the District Court declined to sentence you and referred you to this Court for sentencing.
That was an appropriate course in the circumstances, to enable preventive detention
16 R v Cudby [2012] NZHC 636 at [28].
17 R v Luce [2007] NZCA 476; Triggs v R [2010] NZCA 543.
to be considered as a sentencing option. Before me today the Crown seeks that such a sentence be imposed, whereas your counsel opposes such a sentence.
[35] Preventive detention is an indeterminate prison sentence, under which prisoners may be released on parole but are subject to recall to prison at any time and are subject to Department of Corrections supervision for the rest of their lives. The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.18 It is imposed when a finite sentence does not offer sufficient protection to the community from the offender.
[36] The Court may impose a sentence of preventive detention if three criteria are met, namely:19
(a) a person is convicted of a qualifying sexual or violent offence;
(b)the person was 18 years of age or over at the time of committing the offence; and
(c) the court is satisfied that the person is likely to commit another qualifying offence if the person is released at the sentence expiry date.
[37] The first two criteria are clearly met in this case, as all the sexual violation and indecent assault charges are qualifying offences and you are over 18. The only contentious matter, therefore, is whether I am satisfied that you are likely to commit another qualifying offence, such as further sexual offending, once you are released from prison.
[38] There has to be a significant, ongoing risk of serious harm before somebody is imprisoned indefinitely.20 Although an offender’s past convictions will be relevant to assessing future risk,21 there is no requirement that offenders have prior
convictions to be subject to preventive detention, and preventive detention has been
18 Sentencing Act 2002, s 87(1).
19 Sentencing Act 2002, s 87(2).
20 R v Parahi [2005] 3 NZLR 356 (CA) at [85].
21 R v McGee (1995) 13 CRNZ 108 (CA).
imposed on first time offenders.22 On the other hand, the fact that an offender had not been warned of the possibility of preventive detention, and has never had the opportunity to attempt rehabilitation and reform is a relevant factor.23
[39] I have been provided with two reports to help me assess your future reoffending risks. One is the Department of Corrections report, prepared by Dr Stephen Els (“the Els report”). The other is a report from the Midland Regional Forensic Psychiatric Service, prepared by Dr Kadhem Majeed (“the Majeed report”).
[40] With reference to those reports I have carefully considered your reoffending risk and also the list of obligatory factors that the Court must take into account when considering whether to impose preventive detention.24 While I have some concerns about your ongoing risk to society upon your eventual release from prison in the event that any sex offender treatment programme is unsuccessful, I have concluded that a preventive detention order is not justified in your case. Rather, a lengthy
determinate sentence with a minimum period of imprisonment is the appropriate course. I take into account that you have not yet had the opportunity to undertake any rehabilitative programmes and you have indicated a willingness to do so.
[41] I also note that the Court of Appeal has recognised that the possibility of the Parole Board imposing an extended supervision order can be taken into account when determining if preventive detention is appropriate.25 The purpose of an extended supervision order is to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences.26 Orders may not exceed 10 years;27 but a recent amendment to the Parole Act (effective December 2014) means at the expiry of one extended supervision order, a new order can be sought. Although the
Court cannot order at sentencing that an extended supervision order be made by the
22 Bruce Robertson Adams on Criminal Law (online looseleaf edition, Westlaw) at [SA87.07A];
see R v Cumming HC Christchurch T25/02, 18 December 2002 and R v Bryant CA236/03, 16
December 2003.
23 R v Ranga [2014] NZHC 2583 at [29].
24 Sentencing Act 2002, s 87(4).
25 R v Mist [2005] 2 NZLR 791 (CA) at [100].
26 Parole Act 2002, s 107I.
27 Parole Act 2002, s 107I(4).
Parole Board, it is nonetheless a factor in analysing whether a determinate sentence would be suitable.
[42] You will be almost 80 on your release from prison, if you are not granted parole. Any prospect of parole is likely to depend on your successful engagement with a sex offender treatment programme. Following your release from prison you can be subjected to an extended supervision order until you are 90 or older.
[43] Preventive detention protects society by making an offender liable for recall to prison for the rest of their life. Given your age, however, much the same effect can be achieved by a lengthy determinate sentence and the prospect of an extended supervision order at the end of your sentence if the Parole Board views that to be appropriate at the time. That assessment will be able to be made in light of all of relevant information then available to the Parole Board, including any issues of age and mental or physical infirmity, as well as the extent to which you have successfully engaged in rehabilitative programmes while in prison.
Minimum Period of Imprisonment
[44] The final issue I need to consider is whether a minimum period of imprisonment should be imposed and, if so, how long that period should be.
[45] 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 that is longer than the default non-parole period of one-third of the length of the sentence.28 The court may impose a minimum period of imprisonment if it is satisfied that the one-third default minimum is insufficient to either hold the offender accountable for the harm done, denounce their conduct, deter the offender or others, or protect the community.29 A minimum period of imprisonment must not
exceed two-thirds of the full term of the sentence.30
28 Sentencing Act 2002, s 86(1).
29 Sentencing Act 2002, s 86(2).
30 Sentencing Act 2002, s 86(4)(a).
[46] It is common ground that a minimum period of imprisonment is justified in your case. The Crown suggests that it should be set at two-thirds of your sentence, which would be eight years. Your lawyer submits that it should be set at half your sentence, which would be six years.
[47] There is no doubt that your offending is deserving of the imposition of a minimum period of imprisonment, as release after a third of your sentence would be inadequate to hold you accountable for the harm you have done and would be insufficient to protect the community from you. In my view the interests of deterrence, denunciation and protection of the community warrant a minimum period of imprisonment of two thirds of your sentence.
Result
[48] Mr Walker, please stand:
(a) On each of the fourteen charges of sexual violation by unlawful sexual connection you are sentenced to 12 years’ imprisonment, with a minimum period of imprisonment of eight years.
(b) On each of the seven charges of indecent assault on a female under
12 years you are sentenced to seven years’ imprisonment.
(c) On each of the six charges of indecent assault on a female aged 12 to
16 years, you are sentenced to five years’ imprisonment.
(d)On the charge of knowingly making objectionable publications you are sentenced to five years’ imprisonment.
(e) On the charge of intentionally making an intimate visual recording you are sentenced to two years’ imprisonment.
[49] All of these sentences are to be served concurrently. The end result, therefore, is that you are sentenced to 12 years’ imprisonment with a minimum period of imprisonment of 8 years.
[50] I also make an order for destruction of the seized electronic storage devices that contain intimate and objectionable material, as well as any hard copy photographs or other materials containing the same.
[51] You may now stand down.
Katz J
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