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 in her vagina. The last charge was a representative charge relating to other times when you put your fingers inside her vagina.

[9]    The indecent offending related to a number of occasions when you touched her breasts, her bottom and around her anus.

[10]   Around the time this victim was in your care, or soon afterwards, she told a social worker related to her of what was happening, however probably not in specific terms. She was not believed.

[11]   In 2015, the Police were investigating allegations against you of sexual offending against others who had been in your care. At that stage, the victim of this offending did not want to talk to the Police.

[12]   In April 2016, you were convicted for 52 sexual offences committed between 1995 and 2002, and somewhat later, involving eight young people. Four of them, who were aged between 13 and 16, were placed with you under CYFS care. You offended against them between 1995 and 2000. There is a detailed account of your offending in three of the CYFS cases in a statement of admitted facts presented as evidence in your most recent trial.

[13]   You had been the subject of a CYFS and Police investigation in 2000 following a complaint by one of those victims. It did not, at that time, lead to prosecution but you and your wife ceased to be CYFS family home carers.

[14]   After leaving the CYFS home, you befriended a vulnerable family. In April 2016, you were convicted of serious sexual offending involving four children from that family. On appeal, the Court of Appeal quashed relevant convictions in respect of three of those children.

[15]   On 29 September 2017, Gendall J resentenced you on the convictions that had been upheld. Nine of those convictions were for rape, eight for unlawful sexual connection, five for sexual conduct with a young person aged between 12 and 16, and four were for doing an indecent act with intent to offend. Gendall J incorporated into his resentencing remarks observations made in his original sentencing.

[16]   The Judge said the CYFS victims were all aged 13 to 16, at a very vulnerable stage in their lives. They were susceptible to grooming whether by affection, bribery with cigarettes, alcohol or otherwise. Gendall J said, while in a position of control and

authority over the children, you exploited their vulnerabilities. He said you threatened them and told them that, if they complained, they would not be believed.

[17]   As to one victim, your offending included two counts of indecent assault, one on a representative basis. You were found guilty on one count of sexual violation by unlawful sexual connection and one count of attempted rape.

[18]   Another complainant was a young boy. With him, you were found guilty of sexual violation by unlawful sexual connection through digital penetration of his anus.

[19]   As to another girl, you were found guilty of what the Judge described as horrendous sexual abuse, five counts of sexual violation by rape, one being representative in nature, five counts of unlawful sexual connection through you requiring her to give you oral sex, and one count of indecency with a girl aged between 12 and 16. The Judge said many of these offences were committed with the use of threats or coercion.

[20]   The fourth victim was aged between 14 and 15 when she was in your care. You were found guilty of two charges of rape and three charges of sexual violation by unlawful sexual connection. Two of those charges were representative in nature. As to her, you were also convicted of two charges of doing an indecent act with intent to assault or offend, one charge of sexual indecency with a girl between 12 and 16, and one charge of male assaults female. The Judge described your offending against her as prolonged and extreme.

[21]   You were also sentenced for your offending against a girl from the vulnerable family who had been aged 13 or 14 at the time of the offending. The charges for offending against her were two charges of rape, one charge of attempted rape, one charge of attempted sexual violation by unlawful sexual connection and two charges of indecency. This offending occurred some years after you had been subject to the CYFS and Police investigation in 2000 and CYFS had ceased to use you as a caregiver.

[22]   On 29 September 2017, Gendall J decided the appropriate sentence for the offending against the four CYFS children was 16 years’ imprisonment. He considered

12 years’ imprisonment was the appropriate sentence for the offending against the girl from the vulnerable family. He then adjusted that sentence down to three years for totality to reach the total period of imprisonment of 19 years. He imposed a minimum period of imprisonment of 10 years.

[23]   When the Court of Appeal quashed a number of convictions for alleged offending against other members of the vulnerable family, you were remanded for retrial on those charges.

[24]   On 9 June 2020, the Crown offered no evidence on the charges concerning the three original complainants who would have otherwise been the complainants on the charges on which you were to be retried. Those charges were dismissed.

[25]   In the context of a pending retrial, the Police made contact with the victim of these latest charges. She was initially reluctant to engage with the Police but ultimately agreed to participate in a DVD recorded interview on 7 February 2018. That interview was presented as her evidence in chief at the trial on 2 May 2022.

[26]   Seeing and hearing the complainant describe what had been done to her when she was in the home, I consider a marked feature of your offending was your arrogance. You treated a vulnerable and troubled young teenager, who was in your care, as someone you were entitled to use for repeated acts of sexual gratification as if you would never have to be accountable for what you were doing. For a number of years, you weren’t. This complainant was not believed when she spoke to others about what had been happening to her. You groomed her to put up with what you wanted to do with her, on occasions buying her cigarettes and clothes, when that was not something you were permitted to do by CYFS. You bought alcohol for her. There were times when she told you to stop what you were doing and that it was hurting, but you did not stop. She said you kept forcing yourself on her and, in the end, she just let you basically get your own way. You told her that, if she told anyone about what you were doing, no one would believe her because you were the caregiver and she was in CYFS care because of bad behaviour.

[27]The aggravating features of this offending are:

(a)   First of all, the extent of harm: The victim has detailed this in her victim impact statement. She still experiences intensely the psychological effects of the offending. It has impacted on her ability to form relationships with her peers, her family and her children. There were other events in her life which must also have damaged her. Nevertheless, what you did must have had long term and continuing consequences given she had been placed in your care, you had authority over her and she should have been able to trust you.

As Gendall J pointed out, there was also harm to the community and to the families of troubled and vulnerable children through the way your actions erode the confidence which the public have in the care provided then by CYFS, now by Oranga Tamariki.

(b)    Your offending did involve a serious abuse of a position of trust: The victim was placed in your care when she had a particular need for care and protection. CYFS had put their trust in you to provide that care and protection.

(c)    The victim was vulnerable when this offending happened: She was only

14. She was at particular risk because of her troubled background. You must have known this was why she was in your care.

(d)   As to the scale of offending: This offending took place over about a month and involved a number of serious offences, including two rapes. It was more than a one-off incident and, after it had started, it would have been a constant presence for the victim over the time she was in the home.

(e)  As to premeditation/grooming: Your counsel accepted this factor was present with steps you took to get the victim alone but it was also present in the way you bought alcohol, cigarettes and clothing for her as an inducement to have her tolerate what you were doing to her.

[28]There are no mitigating features of the offending.

[29]   There are also no mitigating features as to you personally. The pre-sentence report tells me, as did your counsel today, that you deny this offending, as you do also the other offending for which you are now serving a long prison sentence. That is despite you admitting most of that other offending in the statement as to admitted facts. You may have to continue with your denials to retain the support of your family, but those denials mean you have not accepted responsibility for what you did to the victims of your offending and the considerable harm it has caused.

Submissions

[30]   Ms McManus, for the Crown, submitted the current offending should be sentenced in the context of the offending for which you have already been sentenced. Ms McManus submitted, were this offending to be dealt with on its own, it would fall within band 3 of R v AM, that is a starting point sentencing of 12 to 18 years.1

[31]   Ms McManus submitted, taking into account relevant case law2 and the fact the Court is not bound to the statutory maximum penalty in cases where there are multiple victims,3 an appropriate sentence would be 21 years’ imprisonment to reflect all the offending against the foster care children and the 14 year old from the vulnerable family. This would require you to be sentenced to an additional two years, to be served cumulatively with the sentence you are currently serving.

[32]   While s 84 of the Sentencing Act 2002 suggests that a concurrent sentence would be more appropriate, doing so in this case where the sentences have been imposed on two separate occasions she submits would not be in the interests of justice. Ms McManus submitted the additional two years’ imprisonment could be imposed by way of a sentence of two years’ imprisonment cumulative on your present sentence.

[33]   The Crown submitted the minimum period of imprisonment of 10 years would still be appropriate.

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

2      Citing B v R [2011] NZCA 654 and R v AF [2013] NZHC 822.

3      Citing R v Burrett [2016] NZHC 644 at [41] citing R v Xie [2007] 2 NZLR 240 (CA) at [16].

[34]   Mr Williams, for you, agreed that this offending needed to be considered in the context of the offending for which you have already been sentenced. He submitted, if you were being sentenced for this offending in isolation, a period of 12 years’ imprisonment would be appropriate as a starting point.

[35]   He submitted the appropriate approach was to consider what the sentence would have been if this offending had been the subject of the sentencing that occurred on 29 September 2017.4 He submitted the likely starting point on the CYFS charges would have remained at 16 years even if the present charges were before the Court.

[36]   Mr Williams submitted, if you were being sentenced for this offending at the same time as the rest of your offending, the overall sentence would not materially change because it lacks the features of offending that attract a starting point of higher than 20 years’ imprisonment. He submitted, even with an additional CYFS victim and the scale of the offending being more serious, the aggravating features would still have been the same. The offending would still fall within band 4 of R v AM, that is 16 to 20 years.5

[37]   In support, he referred to R v P and the Court noting that a common feature in sexual offending attracting starting points approaching 20 years’ imprisonment was the use of threats or actual violence to intimidate and subdue the victims.6 He said the use or threat of violence was not present with your offending.

[38]   Accordingly, Mr Williams submitted there should be no effective increase in the sentence already imposed.

Analysis

[39]I deal now with my analysis.

[40]   I have considered the aggravating features of all the offending with the CYFS victims, including the most recent offending for which Mr Walmsley you have now

4      The approach taken in R v S [2014] NZHC 952; Wilson v R [2019] NZCA 584; R v G [2021] NZHC 218.

5      R v AM, above n 1.

6      R v P (CA176/04) CA176/04, 7 October 2004 at [24].

been convicted and the increased scale of that offending with this latest proved victim. The offending against her includes two charges of sexual violation by rape and three charges of sexual violation by unlawful sexual connection, one of which was on a representative basis.

[41]   I consider, had this latest proved offending been the subject of sentencing in 2017, the starting point sentence for offending against the five CYFS children would have been more towards the top of band 4 in R v AM, 18 years’ imprisonment, an increase of two years to the sentence for that offending from 2017.

[42]   In considering an adjustment for the totality of offending, I have had particular regard to statements from the Court of Appeal as to available starting points for the most serious instances of serious sexual offending, including rape against multiple victims.7

[43]   In B v R, the Court of Appeal noted that, in R v AM, the Court recognised that, in some cases of multiple offending, the offender’s overall culpability merits a longer sentence than 20 years.8 The Court of Appeal observed that offending within band 4 of R v AM of 16 to 20 years was likely to involve multiple offending over considerable periods of time rather than single instances of rape. They said:9

Perhaps the paradigm rape band four case is that of repeated rapes of one or more family members over a period of years. Prolonged offending against multiple victims warrants higher starting points within the band.

However, in R v AM this Court recognised that in some cases of multiple offending the offender’s overall culpability merits a longer sentence than 20 years.

[44]   I consider the features of your overall offending that put it in the worst category of sexual offending are that your offending has involved multiple rapes and other serious sexual offending against multiple victims to whom you had obligations of trust and protection. Your offending did not involve the use of physical violence to obtain your victims’ submission to the extent of the offending in R v P,10 but there was

7      B v R, above n 2, at [54], [58], [59] and [61]; R v P, above n 6, at [16], [17] and [23].

8      B v R, above n 2, at [59].

9      At [58] and [59]. Citations omitted.

10     Above n 6.

violence through the rapes and the sexual violations. In B v R, the Court of Appeal noted the physical assaults were grave, including rapes of two of the children and indecent assault which the Court said must have been close to rape.11 I note also the admitted facts document, which detailed the circumstances of your offending with three other CYFS victims, describes instances where you physically forced them to submit to you.

[45]   What makes your offending different from and as serious as the most serious cases is that it occurred when you had been trusted, not just by the victims and their families but also by CYFS, to care for your victims and protect them from the very sort of offending which you subjected them to.

[46]   I consider an appropriate sentence for all the offending involving the CYFS victims and also the daughter in the vulnerable family would have been 21 years’ imprisonment. That would also involve an increase of two years on the sentence imposed in 2017.

[47]   The Crown suggests, with the gap between sentencings, even though concurrent sentences for the offending against the CYFS victims would otherwise have been appropriate, justice would be better served if you receive a cumulative sentence of two years. The same result could however be achieved through imposing a concurrent sentence of the appropriate length, given such a sentence would begin today.

[48]   It took considerable courage for this latest victim to engage with the Police over the offending she had suffered. Participating in the trial process was a considerable ordeal for her. Having read her victim impact statement, the biggest benefit for her from doing so will probably be that the jury believed her. Even so, she would probably find it difficult to understand that the sentence for what you did to her could be just two years’ imprisonment.

[49]   Under s 79 of the Parole Act 2002, the start date of a sentence that is substituted for a sentence that was quashed or otherwise set aside on appeal is the start date of the

11     Above n 7.

original sentence. Your present sentence of 19 years thus runs from 24 June 2016. The expiry date on that sentence is 24 June 2035.

[50]   The sentence for your current offending begins today when the sentence is imposed.12 You will be sentenced to an additional two years’ imprisonment if I impose a sentence of 14 years and 11 months in total for this offending, to be served concurrently with your existing sentence of 19 years.

[51]   You were subject to a minimum term of imprisonment of 10 years on your earlier sentence. Because of that, I am not imposing a minimum term of imprisonment on these latest charges.

[52]   The additional sentence of two years is thus to be achieved through the sentences which I am now going to impose.

[53]Mr Walmsley, please stand.

[54]   On each of the two charges of sexual violation by rape, you are sentenced to imprisonment for 14 years and 11 months. On each of the three charges of sexual violation by unlawful sexual connection, you are sentenced to imprisonment for 12 years. On each of five charges of indecency with a girl between 12 and 16, you are sentenced to imprisonment for 18 months. Those sentences are all concurrent with each other and concurrent with the sentence of 19 years which you are currently serving.

[55]   As I indicated, that will extend the expiry date from your current sentence by two years. It means that you have effectively been sentenced to 21 years’ imprisonment for all of the offending of which you have been convicted, with a minimum term of 10 years.

[56]You can stand down.

Counsel:

Gresson Dorman & Co., Timaru

A M S Williams, Barrister, Christchurch.

12     Parole Act 2002, s 76.