The Queen v Kenneth Warren Hawkins

IN THE COURT OF APPEAL OF NEW ZEALAND

CA51/02

THE QUEEN

KENNETH WARREN HAWKINS

Hearing:	22 May 2002
Coram:	Blanchard J Hammond J Gendall J
Appearances:	M L Knowler for Appellant B J Horsley for Crown
Judgment:	22 May 2002

JUDGMENT OF THE COURT DELIVERED BY GENDALL J

This is an appeal against an effective sentence of 11 years imprisonment and an order for reparation of $30,000 imposed upon the appellant in the District Court at Invercargill. He had pleaded guilty to four charges of rape, twelve charges of sexual violation by unlawful sexual connection, and nine charges of indecent assault. The victims of the offending were two children, then aged 6-8 years.
The offending took place over a period of two and a half years from January 1999 to May 2001 in respect of one child and over 13 months from 1 April 2000 to 30 May 2001 in respect of the other.
The crimes encompassed a wide range of sexual abuse involving fondling the children’s genitals, simulating intercourse, sexual connection through oral contact; and in respect of one child penetrating her digitally, with objects including a rubber dildo, and raping her. In addition, in respect of that child the appellant filmed on a digital camera (and downloading images onto his computer) depraved acts being performed upon her by him as well as filming her genitalia. A number of the charges were representative, as the offending was ongoing.
In imposing sentence the Judge referred to the aggravating features including the repetitive abuse of two young victims involving a breach of trust; a gross abuse of power; and the aggravating feature of the photographing of one child in pornographic poses. The Judge referred to mitigating features including an early guilty plea and he accepted (the fact) that the rape charges fell short of full vaginal penetration. The Judge accepted that the appellant was remorseful and that those who knew him were astounded at the offending.
The Judge took as a starting point a term of imprisonment of 15 years, after aggravating features and, after making allowance for guilty pleas and for the reparation orders, he concluded that an effective term of 11 years imprisonment, imposed on the four rape charges, was necessary. Other sentences in respect of the charges of sexual violation and indecent assault resulted in concurrent terms of imprisonment of eight, five and four years. Reparation of $20,000 was ordered in respect of the child against whom the more grievous offending had occurred and $10,000 in respect of the other child, as the appellant had ample means to pay such reparation.
In support of the appeal counsel argued that an effective prison sentence of 11 years was manifestly excessive. She did not challenge the reparation order. She submitted that the starting point of 15 years adopted by the Judge was too high. She suggested too little allowance was given for the guilty pleas and that the rape charges were of lesser seriousness as they did not involve vaginal penetration but only penetration of the external genitalia. She submitted that other factors such as the appellant’s good character and his age (55), should have been given greater weight. Counsel generally submitted that if proper weight had been given to all the mitigating factors a sentence of eight years imprisonment was appropriate.
The totality principle requires that the sentence imposed should reflect the gravity of the offending. This was grave sexual offending by a 55 year old man upon two young children, one of whom was a family member. He was in a position of trust and his actions involved multiple depraved sexual acts upon each of these girls, including several rapes of one child. It is well known that long term effects of such serious crimes upon young children such as these can be profound. We are unpersuaded that it could be said to be a mitigating feature that the rapes involved only penetration of the external genitalia (labia) and not the vagina of the 6-7 year old girl. The act is rape as provided by the Crimes Act 1961 and penetration of the external genitalia only may frequently be the case with rapes of young girls. With children of this age the fine distinction that counsel seeks to make is inappropriate. The most that could be said for the appellant in this respect is that there was no aggravating factor of injury caused by full penetration.
The filming by the appellant of himself raping one of these children and performing other gross indignities upon her is particularly reprehensible. It was further aggravated by his placing such photographs and images of the child on his computer, with consequential possible access by others to such material.
Whilst allowance must be, and was, given for the appellant’s guilty pleas, it is clear that the defence of the charges would have been futile given the discovery of the pornographic images held by him on his computer showing him seriously violating one child. The substantial reparation order was also a factor to be taken into account in assessing the final sentence of imprisonment but any attempt to lay down any amount of tariff for reparation if it fetters a discretion of a sentencing Judge is to be avoided, (R v Thaker (CA382/90, 22 March 1991)). In the present case the Judge allowed a two year discount for each of the factors of guilty pleas and reparation. We are not persuaded that such discount was insufficient.
Questions of deterrence of others, as well as the need to mark society’s condemnation and abhorrence of such crimes are obvious. Nevertheless, as was observed by this Court in R v Accused (CA143/93) (1993) 10 CRNZ 379 the Court must guard against the risk of being overwhelmed by appalling details of offending when measuring culpability against other cases and the Court has to guard against allowing a natural revulsion to overcome more objective considerations.
The issue is whether the term of 11 years was, in the end, manifestly excessive. In the present case, the sentence could be described as stern. But the multiple aggravating features to which we have referred were so serious as to warrant a substantial sentence. We are not persuaded that it was manifestly excessive so as to be outside the permissible range available to the sentencing Judge.
The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington
McKenzie Associates, Invercargill

[2002] NZCA 108

22 May 2002