IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY TO30332 Q U E E N RICHARD GEOFFREY BULL SENTENCE OF LAURENSON J.

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY TO30332 Q U E E N v RICHARD GEOFFREY BULL Hearing: 1-4 March 2004 Appearances: Mr Crayton for the Crown Mr Pyke for the Prisoner Judgment: 6 April 2004 SENTENCE OF LAURENSON J. Solicitors: Crown Solicitor, PO Box 19173, Hamilton W Pyke, PO Box 19271, Hamilton Q U E E N V RICHARD GEOFFREY BULL HC HAM TO30332 [6 April 2004]

2 Introduction [1] Mr Bull, you were found guilty by a jury in the High Court at Hamilton on 4 March 2004 on: a) Four counts of indecency with three different boys between the age of 12 and 16, those charges being laid under s140(a)(1)(a) of the Crimes Act The maximum penalty on each count is seven years. b) Eight counts of sexual violation laid under s128(1)(b) of the Crimes Act in respect of one of those boys. Two of those charges related to unlawful sexual connection, namely connection between his mouth and your penis. One was a specific charge and the second a representative charge covering a period of one year between June 2001 and June The remaining six counts related to unlawful sexual connection, namely anal intercourse by you with the boy. One of these counts was a representative count concerning the period June 2001 to June The maximum penalty in each of these counts is imprisonment for twenty years. [2] Following the verdicts of guilty by the jury, which, I should mention, were delivered after a very brief time of some 35 minutes, you were convicted and remanded for sentence until today. Factual Background [3] The evidence revealed that you had come to know each of the three boys after they started attending your climbing gym in Hamilton. [4] The two boys who had not been subjected to sexual violation had both been indecently assaulted by you in 1997.

3 [5] The offending in relation to the third boy had occurred between June 2001 and June [6] In each case the offending had followed a similar pattern. You had fostered a friendship with each of them which then led to a relationship going beyond that of an owner or manager of a gym, with users of the gym, and to the point where you took them away for climbing trips. You groomed the boys to receive sexual advances from you commencing with massaging and leading on to the indecent fondling of their genitalia. In the case of the offending in 1997 both the boys firmly rejected your advances. [7] The third boy, in respect of whom the major offending occurred, was by reason of his particular personal circumstances far more susceptible to those advances. He was the subject of a far more concerted seduction by you. This involved gifts, various types of threat and blandishments all designed to overcome his reluctance and dislike for what eventually happened. The net result was that over a period of about one year you obtained his compliance to what occurred. The jury very clearly rejected any suggestion that he provided a full consent or that you had any reasonable grounds for believing he did. [8] Having heard the evidence Mr Bull, I am satisfied that in relation to the three boys concerned you quite cold bloodedly set out to seduce them. What you did was premeditated and deliberate. [9] To assist me in considering an appropriate sentence, I called for, and obtained a pre-sentence report, victim impact reports, and a reparation report. I now refer to each of these in turn. Pre-Sentence Report [10] This report refers to the following matters: a) You are a single man, 33 years of age. b) You report that you have had no significant relationships.

4 c) You described your sexuality as bisexual, leaning towards gay. d) For a number of years you were managing the [ ] Climbing Centre, a business owned by yourself and your parents. This apparently ceased after you had been charged with the present offences with the result that you report that you have no income, no savings, and you have a business debt of $100,000 which your parents have taken over. e) Your mother describes you as a kind, gentle and honest person who had a passion for the sport of climbing, and who had built a successful business offering climbing training and opportunities to climb to young people who you went out of your way to help. Your family is very clearly standing by you at this time. f) When interviewed by the Probation Officer you maintained your not guilty stance saying that the sexual offending against the boy who I will describe as the principal victim had not happened at all, and that you believed that the other two boys who had been assaulted in 1997 had conspired to make the complaint. You admit massaging the boys during the events in 1997 but deny any intentional or indecent touching. g) You are a first offender with no previous convictions. h) No assessment of motivation to change could be made, given that you have continued to deny guilt. i) The recommendation by the probation officer is for imprisonment. Victim impact reports [11] There is a common theme running through all of these. a) Each of the boys was a keen, active and talented climber.

5 b) They looked to you for help and assistance in this sport. You helped and encouraged them, and thereby gained their confidence. c) The offending occurred when all three were passing through the stage of puberty. d) The offending confused and bewildered them and caused them all to have doubts as to their sexuality which has had the result of leaving them all with difficulties in their relationships with other people to this point. e) All three of them have ceased their involvement in climbing which in the case of the principal victim has meant a severe loss to him. f) The impact of the offending on the principal victim has been severe causing him, he says, to become involved in a lifestyle involving drugs. g) They all report being embarrassed, confused and angered by what happened. Reparation report [12] Clearly, there is no prospect of reparation nor has any been sought. Sentencing Act 2002 [13] The Crown has identified the following purposes of sentencing under s7 of the Act as being relevant. a) To hold you accountable for the harm done to the victims and the community by the offending (s7(1)(a)). b) To promote in you a sense of responsibility for and acknowledgement of that harm (s7(1)(b)).

6 c) To provide for the interests of the victim of the offence (s7(1)(c)). d) To provide reparation for the harm done by the offending (s7(1)(d)). e) To denounce the conduct in which you were involved (s7(1)(e)). f) To deter you or other persons from committing the same or similar offending (s7(1)(f)). g) To protect the community from you (s7(1)(g)). [14] The Crown has identified the following principles of sentencing pursuant to s8 of the Act as being applicable to this case. a) To take into account the gravity of the offending including the degree of your culpability (s8(a)). b) To take into account the seriousness of the offending in comparison with other types of offences as indicated by the maximum penalties prescribed for the offences (s8(b)). c) To impose the maximum penalty prescribed for the offence if the offending is within the most serious cases for which the penalty is prescribed unless the circumstances relating to you make that inappropriate (s8(c)). d) To impose a penalty near to the maximum prescribed for the offences if the offending is near to the most serious of cases for which that penalty is prescribed unless circumstances relating to you make that inappropriate (s8(d)). e) To take into account the general desirability of consistency in sentencing (s8(e)).

7 f) To take into account information provided to the Court concerning the effect of the offending on the victims (s8(f)). g) To impose the least restrictive outcome that is appropriate in the circumstances (s8(g)). Aggravating factors [15] These, in my view, can be summarised as follows: a) The fact that there were three victims. b) They were all at a young and vulnerable age. c) The offending occurred in two periods i.e and 2001/2002.The last period of offending occurred after you had indecently assaulted the two other victims and had been soundly rebuffed by them. d) In each case, there was a breach of trust involved particularly in the case of the principal victim. You took advantage of the youth, vulnerability and enthusiasm for climbing of all three boys to engender confidence in you which you subsequently sadly betrayed. e) Each case involved an element of grooming or premeditation. In the case of the principal victim the ongoing offending was accompanied by what I can only describe as manipulative, and in some instances, cruelly manipulative behaviour. f) You have shown no remorse and, indeed, have denied any offending. You were not obliged to give evidence but if this was indeed your defence then I have to say that it may have obtained some sympathy at this stage if you had been prepared to submit yourself to crossexamination in the same way, as did the victims. I have already noted that the jury was sufficiently impressed with their evidence to take only some 35 minutes to reach its verdict.

8 [16] The Crown was unable to point to any mitigating features other than the fact that you are 33 years of age and have not previously appeared before the Court. I note, however, in this regard that you had apparently been offending since you were 26, or first offended when you were 26. [17] Counsel on your behalf referred to the very large number of obviously sincere, personal references, which have been supplied by members of your family, friends and associates. I have read all of these. In addition, your sister spoke to me this morning of these matters to the extent to which you received support from your family, what a good family it has been, what a good and happy upbringing you have had, the sort of person that you have demonstrated to her and others honesty, reliability, kindness and caring for others. She described you as a kind, gentle, forgiving, generous, reflective and considerate person. In all, she spoke in a most eloquent, sincere and compelling manner. Sentencing purposes, principles and levels [18] I agree with the Crown s assessment of the relevant sentencing purposes but I have to say that, in my view, the principal purpose in this case must be deterrence. [19] I also agree with the Crown s assessment of the relevant sentencing principles but note that this offending occurred prior to 1 July 2002 when the Sentencing Act came into force and accordingly the sentence must conform to the levels of sentencing prior to that date. [20] There is, in my view, clearly no option open to the Court in this case other than imprisonment as recommended by the probation officer. [21] The offending involved sexual offending against young people. As the Court of Appeal has said in R v B [1986] 2 NZLR 751, the effects of this type of offending have a profoundly detrimental effect on such people with long term effects which can be incalculable. There are indications that the fact that you have been detected

9 and convicted may have brought some element of closure to the victims in this case. I sincerely hope so. When young and valuable people are involved as victims in this type of offending the sentence must reflect society s complete denunciation of the offenders involved. [22] The Court of Appeal in R v Tavinor (CA 313/94, 27 March 1995) said that there is no distinction between anal and vaginal penetration when considering the appropriate approach to sentencing for such offending. This view has been consistently repeated since then. [23] In R v A [1994] 2 NZLR 129, the Court of Appeal determined that a starting point of 8 years imprisonment was appropriate before going on to consider the aggravating and mitigating circumstances of the particular case. [24] The Crown referred to two cases as being indicative of an appropriate sentence in this case. The first was R v T ( CRNZ 51 (CA)), in which the Court upheld a sentence of 15 years imprisonment with a minimum term of imprisonment of 9 years in a case involving the indecent assault and sexual violation of a girl under the age of 12. The offending having taken place over a period of 7 years. This too was a case in which the offending had occurred before 1 July 2002 and where the sentence passed was accepted as being consistent with sentencing prior to that date. [25] In R v M (2003) 20 CRNZ 231 (CA), the Court upheld a sentence of 11 years imprisonment reduced by 2 years in respect of a plea of guilty with a minimum sentence of 5 years imprisonment. In that case, the sentence had involved a stepdaughter aged 17 and 18 over a 2-year period but against a background of offending going back to the time when the victim was 11 or 12. [26] Your counsel has referred to R v Lander (CA 276/01, 29 November 2001) where a sentence of 8 years was imposed in respect of continuing offending by anal intercourse with a boy under 16. I do not regard this as being comparable given the Court indicated the aggravating features could have justified a higher sentence.

10 These were, however, offset by the mitigating features, which, so far as this case is concerned, was notably remorse which is not present in the present case. The sentence in this case [27] I have already noted that the sentence must confirm to the level of sentencing for this type of offending which existed prior to 1 July [28] I see no reason why the starting point of 8 years imprisonment referred to in R v A should not apply. [29] To that must be added a recognition of the aggravating features disclosed in this case. These I have already referred to. [30] Notwithstanding the extent of the aggravating features disclosed in this case, I do not consider that the sentence in R v T represents a level of sentence which is appropriate in this case given the younger age of the victim and the length of offending in that case. [31] The sentence in R v M is however of some assistance but not entirely so. Taking into account the number of victims in this case, the fact they were more youthful and what I see as predatory and manipulative conduct by you in relation to the victims who were entrusted to you, I consider a higher sentence is required in this case. Having considered the Crown s submission I find that the higher sentence submitted of 12 years is appropriate, particularly when considering the totality of the offending in this case. [32] The only mitigating features are, as I have said, the fact that at age 33 you have no previous convictions and, in addition, you have led a worthwhile life apart from the offending, during which you have clearly been helpful and considerate of others. These matters have to be seen however, in the light of the fact that you were offending from the age of 26. It is clear that you retain the support and confidence of your family and friends. I regret having to say, that the evidence in this case, and the

11 reaction to it by the jury, leave me with no other conclusion that you have let them all down too. [33] I therefore sentence you to: 12 years imprisonment on each of the six charges of anal intercourse (counts 5, 6, 7, 8, 9 and 10). 5 years imprisonment on each of the two charges of unlawful sexual connection (counts 2 and 4). 1 year s imprisonment on each of the four charges of indecent assault (counts 1, 11, 12 and 13). All these sentences are to be served concurrently. Minimum sentence [34] The Crown has submitted that the offending in this case requires that a minimum sentence be imposed pursuant to s86 of the Act because the aggravating features in this case are sufficiently serious to require a departure from the normal outcome of a sentence, namely that offenders are to be released after serving onethird of their sentence. Having considered the matter in the light of the Court of Appeal s decision in R v T and R v M, I agree that the aggravating features present in this case do bring it within the category of being sufficiently serious to justify a minimum term of imprisonment. The fact that you were prepared to, and did act in a predatory and manipulative manner, directed as the Crown said at trial to achieving the compliance but not consent of the three different victims leaves me in no doubt that your offending was very serious indeed. The scale of the offending also arguably takes it out of the ordinary range of offending of the particular kind. It is my clear view that quite apart from the victims, the public, and in particular the parents of young children who entrust their children to persons who provide training or recreation for them are entitled to be protected from persons such as yourself who are prepared to deliberately take advantage of that trust.

12 [35] For these reasons, and having regard to the minimum sentences imposed in the two cases I have referred to, namely R & T and R & M, I have decided that a minimum sentence of 6½ years should be imposed in your case in relation to counts 5, 6 7 8, 9 & 10. In doing so, I want to make it clear that I have paid regard to the submissions made by your counsel, Mr Pyke that this term should take into account the prospect of you eventually gaining some insight into your offending, thereby promoting your eventual rehabilitation and reform. [36] Please stand down. Solicitors: Crown Solicitor, Hamilton