R v Walmsley - [2022] NZHC 1684

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2018-045-000201

[2022] NZHC 1684

THE QUEEN

v

FRANK RUSSELL WALMSLEY

Hearing: 14 July 2022

Appearances:

S M H McManus for the Crown A M S Williams for the Defendant

Date:

14 July 2022

SENTENCING REMARKS OF NATION J

[1] First of all, I acknowledge [the victim]. I read carefully your victim impact statement in considering the sentence that I was going impose. And, I do acknowledge just how difficult it was for you to come to Court and give evidence. I am hoping that, with the verdict the jury reached and with what happens today, in a sense, you will be able to move on. I realise how important it is for you that the jury found you were not lying in terms of what you said had happened to you.

[2] Mr Walmsley, you will understand that your lawyer put very careful submissions before me in writing before today. The Crown did the same. So, I had the opportunity to consider those carefully before coming into Court today. But, what they said in those written submissions, they have summarised today in Court and you have heard that.

R v WALMSLEY [2022] NZHC 1684 [14 July 2022]

[3] I do need to carefully explain the ultimate decision I have come to and there are various matters I have to go through in doing that. So, it will take some time.

[4] You were found guilty by a jury of 10 counts of sexual offending. The offences were two charges of sexual violation by rape, three charges of sexual violation by unlawful sexual connection and five charges of indecency with a girl between the ages of 12 and 16.

[5] You and your wife became approved caregivers for the Child Youth and Family Service (CYFS) in May 1989. On 1 October 1995, you were caregivers in the Oamaru CYFS home.

[6] The offences were committed over about a month around October to November 1995. The victim was then 14 years old. She, along with other young people, were in your care. Of five CYFS victims of your offending, she was probably the first.

[7] The first rape occurred after the victim had been in your care for about two weeks. You attempted to put your penis inside her and the tip of your penis went slightly inside. You rubbed it up and down. About a week later, she was asleep and woke up to find your hand over her mouth, your penis inside her and, as she put it, you starting to hump her.

[8] The first instance of unlawful sexual connection occurred when the victim was getting ready for bed. You started rubbing her leg and then started to put your hands up her vagina. The second instance was when she was having a shower on a day when she skipped school. She described you rubbing her clitoris and putting your finger…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Walmsley

Details

AGLC: R v Walmsley [2022] NZHC 1684
Case: [2022] NZHC 1684
Decision Date: 14 July 2022

CaseChat Overview and Summary

In the case of The Queen v Frank Russell Walmsley, the defendant was convicted of multiple sexual offences against children in his care, following a retrial. The legal issues before the court were the appropriate sentencing for these offences, considering the defendant's previous convictions and the severity of the crimes committed. The court had to balance the need for punishment with the deterrence of future crimes, as well as the impact on the victims and their families.

The court found that the defendant's crimes were of the most serious nature, involving multiple victims and a significant abuse of trust. The court considered the aggravating factors of the crimes, such as the extent of harm caused to the victims, the defendant's position of trust, and the vulnerability of the victims. The court also noted that the crimes were premeditated and involved grooming of the victims.

Taking into account the defendant's previous convictions and the need for deterrence, the court decided on an appropriate sentence of 21 years' imprisonment, with a minimum term of 10 years. The court imposed an additional two years' imprisonment, to be served concurrently with the defendant's existing sentence of 19 years. This decision ensured that the defendant would face consequences for his crimes while also considering the impact on the victims and their families.

In conclusion, the court found the defendant guilty of multiple sexual offences against children in his care and imposed a sentence of 21 years' imprisonment, with a minimum term of 10 years. The court considered the severity of the crimes, the impact on the victims and their families, and the need for deterrence in reaching its decision.

Orders