R v Walter HC Wellington CRI 2006-032-3079

[2007] NZHC 1626

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2006-032-3079

THE QUEEN

v

AMOR JOSIAH WALTER

Hearing:         15 February 2007

Appearances: G J Burston for Crown

C Stevenson for Prisoner

Judgment:      15 February 2007

SENTENCING NOTES OF MILLER J

[1]      Mr Walter, you appear for sentence today on 44 charges involving gross and almost incessant sexual offending against 15 child victims over a period of seven years.  All but one of the charges are representative.

[2]      I will tabulate the offences in my sentencing notes.   By way of summary, there is one count of sexual violation by rape, 14 of sexual violation by anal intercourse, four of sexual violation   by digital penetration, 18 of unlawful sexual connection by oral connection, one of sexual violation by connection between your penis and  the  victims’ genitalia,  four  of indecent  assault,  and  two  of supplying

cannabis.

R V WALTER HC WN CRI 2006-032-3079  15 February 2007

Offence	Specifics	Victim	CRN
Sexual violation	By rape CA s 128(1)(a)	DN	6065
	By unlawful sexual connection between defendant’s penis and victim’s anus CA s 128(1)(b)	JN	6049
		CN	6055
		DN	6062
		PN	6069
		IL	6072
		C H-S	6075
		KL	6076
		JL	6080
		LM	6090
		DH	6107
	By unlawful sexual connection between defendant’s anus and victim’s penis CA s 128(1)(b)	JN	6052
		CN	6060
		IL	6074
		LM	6092
	By unlawful sexual connection by digital penetration CA s 128(1)(b)	JN	6051
		DN	6063
		KL	6079
		JL	6081
	By unlawful sexual connection between defendant’s penis and victim’s mouth CA s 128(1)(b)	JN	6050
		CN	6058
		DN	6067
		JL	6083
		LM	6094
	By unlawful sexual connection between defendant’s mouth and victim’s genitalia CA s128(1)(b)	JN	6048
		CN	6057
		DN	6061
		PN	6068
		MN	6071
		IL	6073
		C H-S	6416
		KL	6078
		JL	6082
		LM	6091
		BM	6099
		DM	6105
		DP	5124

By unlawful sexual connection between defendant’s penis and victim’s genitalia CA s 128(1)(b)	JL	6084
Indecent assault	Indecent assault on a boy under 12 CA s 140(1)(a) (since repealed)	RM	6070
		JC	6089
	Indecent assault CA s 135	C H-S	6341
		KL	6077
Supplies cannabis	Supplies cannabis to person under 18 MoDA s 6(1)(d)	LM	6093
		DP	5125

[3]      The Crown seeks preventive detention.  It is not my habit Mr Walter, to keep prisoners in suspense; I will tell you at the outset that you will be sentenced to preventive detention with a minimum period of imprisonment of 15 years.

The facts

[4]      It is not necessary to set the facts of every offence out in detail, because there is a clear pattern to your offending and the charges are mostly representative.  The summary of facts records that between July 1999 and August 2006, when you were apprehended, you lived in numerous addresses around the Hutt Valley.   You systematically sought out opportunities to live with families with young children, engaging their trust before abusing the children.  Your preference was for boys aged seven to ten years, but your victims ranged in age from three and a half to 15 years and some were female, indicating that you were willing to take opportunities for sexual gratification as you found them.

[5]     I will briefly summarise your offending in relation to each victim, in chronological order.   The narrative begins in 1999 in a Petone house, where you offended against a child of the family.   You groomed the victim by having him

watch videos and movies with you and masturbated the eight year old victim four to five times.  He declined to engage in other forms of sexual activity.  You introduced the boy to cannabis.

[6]      The  second  victim  was  aged  13,  and  particularly  vulnerable  because  of disability, social isolation, and small size.   You volunteered to care for him then groomed him using a play-station and games.  You supplied him with cannabis and engaged him in oral sex on numerous occasions before progressing to sodomy, with which you persisted despite the protests of the boy, who was in severe pain.  There followed frequent acts of anal intercourse over a considerable period.

[7]      Through this victim you met another boy aged seven or eight years whom you induced to perform oral sex.

[8]      You encountered your next victim in 2001, and later moved into his family home.  This boy was aged six and was groomed using the play-station before he was subjected to oral and anal violation.

[9]      You next took up babysitting children of two families whose mothers were working after school.  The children of one of these families were a boy and girl aged eight and six years respectively.  You offended against them in a very similar way, including oral sex, digital and anal penetration and rape.   You offended repeatedly against these children.

[10]     You next offended against the four children of another family, aged at the time between three and a half and 11 years.  Again, the children were groomed using an X-box, the offending beginning with masturbation and leading to sexual violation by anal intercourse.   You offended against these children on countless occasions, sometimes several times a day.  Force was used to overcome resistance of one of the children, and all experienced pain.   On a number of occasions, one of the victims witnessed  you  offending  against  another.    You  also  made  two  of  the  children perform sexual acts on one another.

[11]     You became infatuated with one of the children, and sought to minimise your offending against him by finding other victims.  They included a number of children who visited the family.  They are the remaining victims.  The offending followed the same pattern, and I will not summarise the details of each case further, except to say that you sometimes offended against one victim while in the presence of another.

[12]     This offending was characterised overall by a high degree of planning  in which  you  invested over  significant  periods  in gaining  the trust  of the  families concerned, sometimes through church groups.   The abuse of trust  is a powerful aggravating factor.  The children were carefully groomed, and their own friendships with other children exploited.   You sought to avoid the use of physical violence, preferring  to  bribe  and  manipulate  the  children,  but  you  resorted  to  it  when necessary.   And your offending was extraordinarily extensive; you seem to have lived for little else.  A time line reveals that there was no period over the seven years when you were not offending against at least one child, and you sometimes offended several times a day.   You rationalised your behaviour by treating the children as willing participants once they had become conditioned to  accept  what  you were doing.  The youngest victim, who was just three when the offending began, became so  conditioned  by  your  abuse  that  he  would  remove  his  pants  and  bend  over whenever you closed your bedroom door.   With others you developed code words for particular forms of sexual activity.

[13]     When interviewed on 13 September 2006 you were found in possession of a school class photograph identifying another boy who you were planning to groom as your next victim.  You were interviewed in relation to the last two of your victims, but police were quickly led to others and you volunteered information about other victims.  You made full admissions.  A letter from the officer in charge of the case confirms that  your degree of co-operation was unusual.   It is apparent that  you welcomed the opportunity to get matters off your chest by admitting to your offending.  You have consistently said since then that you do not wish to be released until you have had treatment, and you have asked for help.

[14]     There was some initial confusion about the extent of your self-reporting.  The letter from the officer in charge says that the police did not know of 9 victims you

identified.   Mr Burston has filed submissions, however, outlining the police investigation.   It appears from the sequence of events that  you confessed on 13

September, by which time the police already knew of most of the present victims and appreciated that they were dealing with a serial offender.   Inquiries into your residential  and  social  arrangements  were  already  underway.    The  nine  victims referred to include a number of respect of whom charges have not been laid, and who therefore I will not take into account for sentencing purposes.  Thus the position is that routine police work identified almost all of the present victims independently of your confessions.  But I accept that you identified three victims that the police might not have located.   And perhaps more importantly, your self-reporting extends to details of the offending that the police likely would not have got from the children. For instance, the youngest victim could not be interviewed, and a sense of shame led other children to under-report your abuse.

Victim impact statements

[15]     The victim impact reports are extensive.  Many of the children have suffered emotional, social, and educational problems, with behavioural difficulties at home and at school.  The harm that you have done to them is irreparable, and only with considerable external and  family support  will some of them be able to function normally.  There are no words to describe the anguish felt by their parents, whose trust you betrayed so comprehensively.  That is particularly true of those who, from the best of motives, invited you into their homes.

Personal circumstances

[16]    Despite all that I have said, your personal circumstances call for some compassion.  Mr Stevenson has made a powerful plea in mitigation on your behalf. He describes you accurately as a profoundly damaged person.   You are aged 27. Sadly your own childhood saw you exposed to serious physical and sexual abuse. Your mother, who had her own difficulties, did not display affection to you and she was often in abusive relationships.  Two of her partners sexually abused you between the ages of five and nine years, as your mother has confirmed.  You had few friends

at school.   At an early age you began to attempt to engage other boys in sexual activities.   At  about the same time you were put  into foster care as a result of physical abuse; that included a blow to the head which resulted in your becoming deaf in your right ear.   You report that in the foster care environment  you had frequent sexual contact with other boys.

[17]     You  have  three  convictions  for  indecent  assault  and  unlawful  sexual connection  in  1997,  when  you  were  aged  17.    You  also  have  a  Youth  Court conviction in 1995 for attempted anal intercourse.   In both cases the victims were young,  and  the  summaries  of  fact  reveal  a  very  similar  pattern  of  behaviour, including the high degree of arousal that you feel around young boys.  It is notable that in relation to the 1997 offending you reported yourself to the police and sought help.   A sentence of supervision for the 1997 offences ended shortly before the present offending began.  It appears that you did not offend while on supervision.

[18]     I asked counsel to check the extent to which you received treatment in the past, because it was unclear from the pre-sentence and health reports.   I have now seen psychological reports of 25 May 1995 and 26 June 1997, and Mr Burston’s supplementary submissions quote extensively from two further reports of 29 June and 30 June 1997.  It appears that you first saw a psychologist in 1991 when your attempts to engage other boys in sexual activities were reported.   That appears to have continued for four years, according to the report of 25 May 1995.   Between August and December 1995  you had 18 sessions with another psychologist, Ms Cavana.  You attended a STOP programme for adolescent offenders between April

1996 and June 1997.   That included weekly group sessions and weekly (or more frequent) individual psychological counselling.   You were closely supervised and followed in the community, with assigned trackers.  The 29 June 1997 report from one of the psychologists, Mr Dixon, says that you were receiving one of the most intensive therapeutic inputs available to any adolescent in a community setting.  He concluded  that  despite  specific  therapy  since  1995  you  retained  a  strongly entrenched pattern of sexual arousal to young boys.

[19]     I accept that you feel genuine guilt about what you have done to your victims, and that led you to co-operate very fully with the police.  It is evident that you have

sought unsuccessfully to control your offending from time to time, particularly with children with whom you became infatuated.    Notwithstanding that, and notwithstanding intensive treatment, you continued to offend in a very calculated manner.  And it is not at all clear that you fully appreciate the harm you have done or your own motivations.  For example, you do not see yourself as a violent person, you discount sexual gratification as a significant cause of your offending, and you tend to characterise the children as willing participants.

Health reports

[20]     As required under the Sentencing Act when preventive detention is sought, two health reports have been prepared.   I have also  considered the pre-sentence report  and the  summaries  of  facts  for  these  offences  and  your  previous  sexual offences.

[21]     The  first  report  was prepared by Dr  Barry-Walsh,  who  interviewed  you, spoke to your mother, and reviewed a file containing previous psychological reports. He highlights the difficulty of predicting risk at  a future date.   Dr Barry-Walsh comments that you were co-operative but found it difficult to discuss your offending, which distresses you, and notes evidence of depression.  You repeatedly expressed your desire to receive treatment and assured him that you had no wish to be released from custody until your problems had been addressed.  You acknowledged persistent sexual fantasies and that your preferred sexual partners are boys between the age of seven and ten.

[22]     He concludes that there is evidence of a disturbed developmental history. Those who have examined you in the past have recognised a danger of reoffending given the unresolved issues in your background.   He considers that you appear to have been profoundly damaged by your own abuse experience and have developed a well-entrenched and intense sexual pre-occupation with prepubescent boys.  He can find  no  evidence  of  a  direct  link  between  any  psychiatric  disorder  and  your offending,  and  observes  that  you  presented  as  remorseful  and  open  to  any intervention to assist you.   It is self-evident, in his view, that without intervention you would be at a very high risk of reoffending were you to be returned to the

community.  But you are a prime candidate for all intensive group sexual offender treatment programmes and individual psychological therapy.   The extent to which such interventions are of benefit varies between individuals and there remains some controversy about their role and effectiveness; in other words, he is not able to predict whether such interventions will materially reduce your risk.  The most he can say is that it is plausible that intervention will assist you.

[23]     The  second  report  has  been  prepared  by  Dr  Jane  Freeman,  a  clinical psychologist with the Corrections Department.   She interviewed you on three occasions, and spoke to your mother.  She reviewed your Psychological Service and prison files but noted that no previous psychological reports had been prepared.  It appears from that that she may not have seen some of the reports that have been referred  to  me  today.    Like  Dr  Barry-Walsh,  she  found  you  open  during  the assessment but distressed when describing your own abuse.  She notes that you have not received prior treatment with Psychological Services although you attended a Stop programme in 2000.  She records that you claim to be very motivated to attend treatment.

[24]     Like Dr Barry-Walsh, she attributes your offending to abuse in your early life coupled with very poor self-image.  You actively sought out opportunities to offend with multiple victims and extensively groomed them, attempting to normalise sexual behaviour with them such that you could reason that they were willing participants. Although you have a victim preference your offending showed a wide deviation from this, indicating an indiscriminate pattern of sexual arousal.  She assessed you using the Static-AS and STABLE  measures, which indicated a moderate risk of reoffending.  These measures understate your risk, however, because it is necessary also to consider the present offending which involved a large number of victims against whom you offended in an indiscriminate way.   There are indications that there has been no significant  period since your adolescence when you were not offending.   High levels of reported deviant sexual preferences and sexual pre- occupation must also be taken into account along with failure of previous treatment. She concludes that you are at a very high risk of serious sexual reoffending.

[25]     Further, she considers that the risk will remain for at least ten years, although it may lessen with appropriate treatment targeting sexual offending against children. She recommends that you be referred for treatment at an appropriate stage in your sentence.

Preventive detention

[26]     There  was  no  dispute  that  you  are  eligible  for  preventive  detention,  the purpose of which is not to punish the offender but to protect the community from those who pose a significant and ongoing risk to its safety.

[27]     The question that the Sentencing Act poses is whether I am satisfied that you are likely to commit another qualifying sexual or violent offence if released at the sentence expiry date of any determinate sentence that I might impose.   The law requires that I take into account any pattern of serious offending, the seriousness of the harm that your offending has caused to the community, information indicating a tendency to commit serious crimes in future, the absence or failure of your efforts to address the causes of your offending, and the principle that a lengthy determinate sentence is preferable if it provides adequate protection for society.

[28]   The Crown seeks preventive detention with a very lengthy period of imprisonment of as much as 20 years, referring me to a number of cases:   R v Thompson  [1996] 2 NZLR 429, Reekie v R (CA 339/03,  3  August  2004),  R  v Fleming (HC Auckland, T 327/96, 10 December 1996, Cartwright  J), R v Hapi [1995] 1 NZLR 257, R v Latu (CA 358/95, 26 September 1996), R v Johnson [2004]

3 NZLR 29, Clark v R (CA 432/04, 9 June 2005), R v T (CA 445/03, 13 May 2004). These cases concern the most serious serial sexual offenders to come before the Court.    Of  them,  Fleming  offers  the  closest  analogy  to  the  facts  of  this  case, involving incessant sexual offending against 42 children over 24 years.  Cartwright J imposed a minimum period of imprisonment of 20 years.

[29]     Mr Stevenson contends that a determinate sentence will suffice, coupled with the prospect of an extended supervision order should that be thought necessary on your release.

[30]     As I have said, it  is common ground that you are eligible for preventive detention under the Sentencing Act.   But seven of the offences were committed before June 2002, when the Criminal Justice Act governed preventive detention, and two of those cover a period in which you were aged under 21.   The substantive criteria for preventive detention were not materially different under the Criminal Justice Act, but it could not be imposed on offenders under 21.   Following the Supreme Court decision in Mist v R [2005] NZSC 77, I will sentence you on the basis that the two offences (CRNs 5124 and 6089) are not eligible for preventive detention because of your age (19-20) at the time. The remainder of the pre-June

2002 offences (CRNs 6090, 6091, 6092, 6094, and 6099) are eligible for preventive detention and the effect of s153 of the Sentencing Act is that the minimum period of imprisonment for those offences is to be fixed under that Act.   I record that the change in the law makes no difference, on the view I take of the facts of this case, to the effective sentence that you will receive.

The appropriate determinate sentence

[31]     It  is  necessary  to  begin  by  considering  the  length  of  the  appropriate determinate sentence, since the assessment of risk must  be carried out  as at the expiry date of that sentence.   The starting point for a rape sentence in a contested case is eight years but that figure is of very little relevance to cases in the most serious category, as this undoubtedly is.

[32]     The maximum determinate sentence that I could impose greatly exceeds 20 years imprisonment, because this was not  a single episode or  incident  requiring concurrent sentences.   Apart from the sheer number of victims and scale of the offending,   this   case   is   characterised   by  gross   breach   of  trust,   calculation, vulnerability of the victims, careful planning, violence and, in some cases, the added degrading feature of abuse of a victim in the presence of others or abuse of one victim by another at your instigation.  Choosing a starting point in such case is very difficult.   I have concluded that this case requires a starting point that materially exceeds the maximum available for a single offence.

[33]     I will adopt a starting point of 30 years imprisonment.

[34]     Your previous convictions for strikingly similar offending would also count as a serious aggravating factor when setting a determinate sentence.

[35]     In mitigation you can point to your guilty pleas, which are an admission of responsibility and avoid a trial with its attendant stress for the victims and other witnesses.  You co-operated very fully with the police, and must also receive credit for that.  I agree that self-reporting and full co-operation call for credit that may in some cases exceed that for a guilty plea:  Senior v Police (2000) 18 CRNZ 340.  But those are cases in which offending would not have come to light otherwise.   You self-reported only after arrest.  And the police had identified most of the remaining victims simply by tracing your living arrangements.   Conviction would then have been inevitable, especially given the availability of eyewitnesses.  It is also a case in which similar fact evidence would very likely be admitted.  The credit to be given for tangible acceptance of responsibility is further qualified in this case by your reluctance or inability to accept the full extent of the harm that you have done or your own motivations.  Your own family background is a mitigating factor, reducing to some extent the culpability of your offending.  You were also a young man when the offending began.   These considerations together do justify a very substantial reduction.   I consider that an appropriate determinate sentence would be 20 years imprisonment.

Are you likely to commit further sexual offences?

[36]     The next question is whether you are likely to commit further sexual offences if released at the expiry of the determinate sentence.  This calls for the exercise of judgment about the risk that you will present in the future, after imprisonment and, I would add, such treatment as the prison system offers:  R v Leitch [1998] 1 NZLR

420, 428.

[37]     It almost goes without saying that the pattern of your offending is extremely serious indeed.  The pattern in itself indicates a very high risk that you will reoffend; you plainly suffer from an intense sexual preoccupation with young boys, although you are willing to offend against children and young people of either gender.  You go to great lengths to find and cultivate victims.  The harm done to members of the

community is also extremely severe.  As has been said before, this sort of offending is distressingly common, but that does not dull its repugnance to the community or its devastating and enduring impact upon the victims.

[38]     The health reports, your previous history, and the facts of these offences together satisfy me that, absent successful intervention, you are very likely indeed to offend in the future.  This is not a case in which the Court might infer that age and maturity will of themselves reduce the risk that  you  present.    Accordingly,  the question is whether the treatment that is available to you in prison will reduce the risk that you present, such that it is not likely that you will commit similar offences at the end of a determinate sentence.

[39]     In that regard, reference has been made in the health reports to individual psychological treatment and participation in sex offender programmes.  There is also your own co-operation and expressed wish for treatment.  However, there is nothing before me that  affords comfort that the programmes or treatments that  you will receive in prison will sufficiently reduce the risk that you present.   You have had sustained treatment in the past with conspicuous lack of success, and the failure of that treatment provides reason to doubt the depth of your commitment to reform.

[40]     The  Court  must  have  regard  to  the  principle  that  a  lengthy  determinate sentence is preferable if it sufficiently protects the community, and I must also take into  account the availability of an extended supervision order  at the end of the determinate sentence:  R v Mist [2005] 21 CRNZ 490, R v Parahi [2005] 3 NZLR

356.   But the availability of an extended supervision order does not relieve the sentencing Judge of the decision whether to impose preventive detention.  Rather, it is more likely to tip the scales in favour of the prisoner in a finely balanced case. The Court must assess the precise criminality and the sentence proportionate to the offending; if that exercise leads to the conclusion that preventive detention is called for, then it must be imposed.

[41]     I recognise the powerful mitigating factors in your favour, but preventive detention serves a protective purpose and in the end this is a clear case.   Your offending was among the worst of its kind, and the propensity to offend in this way

is deeply ingrained in you.  The risk that you present to children, in my opinion, is extremely high and very likely to endure indefinitely.   A sentence of preventive detention also has the advantage that when and if the Parole Board decides that you are fit for release, you will remain subject to supervision, and the risk of recall, for life.

[42]     You will be sentenced to preventive detention on all the 40 eligible offences. On CRNs 5124 and 6089 you will be sentenced to concurrent terms of ten and seven years imprisonment respectively.  On the charges of supplying cannabis, you will be sentenced to a concurrent term of one years imprisonment.

Minimum period of imprisonment

[43]     The law requires that I impose a minimum period of imprisonment.  It may not be less than 5 years.  The period must be the longer of the minimum necessary to reflect the gravity of the offence and the minimum necessary to protect the public, assessed as at sentencing date and in light of your age.

[44]     It is appropriate to have regard to the period available to me had I imposed a determinate sentence of 20 years, in which case a minimum term of up to two thirds of the sentence would have been available.   Mr Stevenson urges that approach on me, emphasising that you must receive full credit for mitigating factors.  Mr Burston points out that the authorities demonstrate that there are cases of such gravity as to render this approach inapt:  R v Johnson [2003] 3 NZLR 29 at [32]. That probably explains cases, such as Fleming, in which extremely long minimum periods have been imposed.

[45]     When setting a minimum period under a determinate sentence the Court first fixes the sentence, taking into account the mitigating factors, then sets a minimum period having regard to considerations of accountability, denunciation, deterrence, and protection.  In a preventive detention case, the Court must consider the gravity of the offending and the safety of the community, and there is no limit on the minimum period.  The legislature has directed the Court to consider the determinate sentence that it would otherwise have fixed, but has chosen not to limit the minimum period

to that available under the determinate sentence.   I accept that mitigating factors must be reflected in the overall gravity of the offending.   But there is a class of offenders who fall into a special risk category or whose offending is of the utmost gravity, and in such cases very long minimum periods are justified.

[46]     In my opinion, the gravity of your offending and the risk that you present both require a lengthy minimum period.  This is an extremely serious case, although not as bad as Fleming in which the offending was much more extensive.  But it is characterised  by  very significant  mitigating  factors;  your  guilty  pleas,  your  co- operation with the police, your relative youth at the time the offending began, your own  background,  and  your  attitude  towards treatment.    Justice  requires  that  an allowance be made for those things when setting the minimum period by reference to the overall gravity of the offending.  So far as the risk that you present is concerned, I note that you will not necessarily be released at the end of the minimum period; rather, you will have the opportunity to persuade the Parole Board that you are fit for release.

[47]     You will serve a minimum period of imprisonment of 15 years.  That will be imposed on all 40 of the eligible offences.

[48]     What  that  means  for  you,  Mr  Walter,  is  that  your  effective  sentence  is preventive detention with a minimum period of 15 years.

[49]     Stand down.

Solicitors:

Crown Solicitors Office, Wellington

C Stevenson, Lower Hutt for Prisoner

F Miller J