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R V GRAEME ANDREW UPCHURCH HC WN CRI 2007-032-2301 [2007] NZHC 1114 (19 October 2007)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                                 CRI 2007-032-2301



                                      QUEEN



                                          v



                         GRAEME
ANDREW UPCHURCH



Hearing:      19 October 2007

Appearances: C Boshier for the Crown
             I M Antunovic and C L Parkin
for the Prisoner

Judgment:     19 October 2007


                        SENTENCING NOTES OF MILLER J




[1]    Mr Upchurch, you
appear for sentence having pleaded guilty to nine charges.
All but one involve unlawful sexual connection and indecent assault. They
involve
five victims aged between 9 and 15 at the time of the offending. The Crown seeks
preventive detention.


[2]    I will tell
you at the outset that I am not going to sentence you to preventive
detention. You will be sentenced instead to five and a half years
imprisonment and
will serve a minimum period of 60 percent of that sentence.


[3]    I will tabulate the charges in my sentencing
notes.



R V GRAEME ANDREW UPCHURCH HC WN CRI 2007-032-2301 19 October 2007

Offence                                  Victim  
Reference
Indecent assault on a girl under 12      Victim A s133(1)(a) Crimes Act 1961
(representative)
Indecent assault on a boy
aged 12-16     Victim B    S140A(1)(a)Crimes Act 1961
(representative)
Sexual connection with a boy aged        Victim C    s134(1)
Crimes Act 1961
between 12 and 16 (representative) x2
Sexual conduct with a boy aged           Victim C    s134(3) Crimes Act 1961
between 12 and 16 (representative) x2
Sexual connection with a girl aged       Victim D s134(1) Crimes Act 1961
between 12 and 16
Sexual connection with a girl aged       Victim E    s134(1) Crimes Act 1961
between 12 and 16
Supplying liquor to minors       
                   s160(1) Sale of Liquor Act
                                                     1989

[4]    These offences occurred
over a 17-year period.        So far as Victim `A' is
concerned, the facts are that whilst you taught her piano in the early 1990s
you
touched and tickled her around her breasts and vagina. This occurred repeatedly
over an 18-month period, until she told her mother
she did not want to attend lessons
any more. You say that you do not recall touching her genitalia.


[5]    Victim `B' is a man
now aged 27. The offending in his case occurred in the
early 1990s. It involved you rubbing his genitals, initially over the top
of his
clothing and it occurred repeatedly over a two-year period. You went to some effort
to groom him using a computer and pornography.
The victim refused your requests
for oral sex. You have admitted the facts.


[6]    Victim `C' is your most recent victim. He is
now aged 14, and met you
through a shared interest in model trains. You abused him when you escorted him to
a function in Taupo in
July 2006, and continued to do so regularly after model
railway club meetings.     You admit offending against him on three occasions
although the Crown says it was much more extensive. I note, however, that the
charges are all representative and I must sentence
you accordingly: since there are
four representative charges, that means there must be at least eight separate incidents
at minimum.
Acceptance of that is necessarily implicit in your guilty pleas and I will
sentence you accordingly. The sexual connection charges
concern oral sex by you

on the victim and the victim on you. The victim says you sometimes paid him for
sex. He also says there
was some force used on occasions to make him comply with
your requests; you deny it and I will not take that into account for sentencing
purposes. You also deny paying him for sex; you say it was lunch money. That is a
distinction without any significant difference;
      I have no doubt that it was at
minimum a reward for the sexual relationship. This offending ceased as recently as
14 May 2007.
I observe that your instructions to Mr Antunovic today were that the
offending ceased before your arrest, and only after Ms Boshier indicated that she
would seek a sentencing
hearing did you instruct him that you were prepared to
accept that the offending continued after your arrest.


[7]     The offending
in relation to Victim `D', who was 14 at the time of the
offending early in 2006, occurred when you made arrangements to take her
to a
netball game. Instead you drove her to a rural area and had intercourse with her.
You maintain it was consensual; the summary
of facts says she protested as you
drove her, although the charge is consistent with her having acquiesced in the end.


[8]    
Victim `E' is a girl with whom you developed a friendship, texting her
regularly and buying her gifts. She is an emotionally troubled
person who was
residing with her grandparents in March 2007, when the offence occurred. You
pestered her repeatedly to have sex,
and she eventually agreed.


[9]     The offence of supplying liquor occurred on 29 December 2006 when you
took three teenagers to
Splash Planet with the intention of returning at the end of the
day. Instead you booked a motel room for the group, purchased alcohol
and supplied
it to the group.


[10]    Features of the offending are its extent and duration, the number of recent
victims, cultivation
of victims, and abuse of positions of trust. It is clearly predatory.
To the probation officer you accounted for your offending by
saying that you were
experiencing problems in your relationship with your partner. You acknowledge that
there was a pattern to your
offending; you would become stressed and lonely and
look for friendship in young people.

[11]   You were arrested on 29 March after
the supply of liquor came to light. You
were spoken to about all of the victims except A. The offending in relation to her
came to
light because you disclosed it during your police interview. However, it will
apparent from what I have already said that you continued
to offend against Victim
C while on bail, although you had been spoken to about him.


[12]   You pleaded guilty to all of the charges
before depositions.


Victim impact statements


[13]   Your offending has affected the victims in sadly familiar ways. All have
been distressed. Most of them have been affected in their relationships, particularly
intimate relationships but also friendships.
     Complainant A's victim impact
statement confirms how enduring the effects can be. Some have suffered difficulties
at school,
or say that they have gone off the rails because of your abuse. This
appears particularly evident in the case of Victim C. Some have
become sexually
active before they would otherwise have done so, and less discriminating in their
choice of partners.


Personal
circumstances


[14]   You are aged 38. You are a truck driver by occupation, and married with a
family of four children, the last
of whom was born only in August. You say you
suffered from sexual on three occasions as a child and you had a clubfoot which
contributed
to social isolation.


[15]   You have one previous conviction, in 2000, for indecently assaulting a
female under 12. That offence
occurred in 1998, before the offending against
Victims C, D, and E. You were sentenced to imprisonment for eight months with
leave
to apply for home detention. You volunteered to attend a sex offenders'
treatment programme but did not complete it, apparently because
of work
commitments.

[16]   You have expressed a high level of motivation to address your offending, and
remorse for its impact
on your victims and your family. Attached to counsel's
submissions is a letter from Wellstop recording that you made telephone contact
with
them on 5 March 2007, before your arrest, and agreed to undergo an assessment for
their treatment programme, for which you were
found suitable.


[17]   I have considered a number of character references, proposed letters of
apology to your victims, and a letter
you have written to the Court. The letters to
your victims will be given to Crown counsel; it will be for the police and the victims
to decide what to do with
them.


Sentencing Principles


[18]   There was no dispute before me 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.


[19]   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.


The appropriate determinate sentence


[20]   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.

[21]   I take the lead offences
to be those of sexual connection under s134(1) and in
particular the representative charges involving Victim C. I note that the section
was
amended in 2005; previously the maximum penalty was seven years. Any starting
point must reflect the maximum penalty at the time
of the relevant offence; it was 10
years when you offended against C.


[22]   There is no guideline judgment under s134. I accept
that the purpose of the
section is the protection of the vulnerable; R v Todd HC NAP CRI 2006-020-12990
26 September 2007. Relevant
considerations include the quality of any apparent
consent, the nature and extent of the sexual conduct, including the duration and
frequency of the offending, the respective positions of the parties, and the number of
victims involved.


[23]   The Crown has urged
me to adopt a starting point of 10 years. That is too
high. I accept that there are cases involving multiple victims in which the
Court has
adopted a starting point of 8 years: R v Turner CA113/04 4 October 2004. There are
similarities in behaviour, but the lead
offence in that case was sexual violation. The
cases suggest that an appropriate starting point in a case such as this would have
been five years before the maximum penalty was increased: R v Maney HC HAM
CRI 2005-019-1469, R v Stevenson HC AK CRI 2004-044-2428,
R v Webster HC
AK CRI 2006-090-0072 15 March 2007.


[24]   In this case, I have to approach sentencing on the basis that your victims
went
along with you. Of course, the quality of consent was very low; the victims were
young, and you exploited positions of trust.
    The offending involving your most
recent victim was serious offending of its sort, involving oral sex and the added
humiliation
that you paid him on occasions. You groomed and manipulated your
victims. Taking into account the number of victims, the duration
of the offending
and the increase in the maximum penalty. An appropriate starting point would be six
and a half years imprisonment.


[25]   Serious aggravating features are your previous conviction, which requires an
uplift in the starting point because it predated
your most recent offending and was

very similar in nature, and the fact that you continued to offend after arrest and
release on
bail. These justify an increase of 18 months.


[26]    Against that, you have pleaded guilty at the earliest practical opportunity,
and
you disclosed some of the offending yourself. The credit to be given to you is
somewhat reduced because you continue to minimise
your offending, and you
continue to insist that it was consensual when, as I have said, the quality of consent
was very low indeed.
Nor do I accept that you were unaware of the impact on your
victims; your previous experience with the Court and with treatment must have
taught you that much.
It is plain too that you behaved strategically by denying
material facts, only to accept them when confronted with the prospect of
a
sentencing hearing. I attach very little weight to expressions of remorse in the
circumstances. Nonetheless, your guilty pleas
are tangible evidence of acceptance of
responsibility and you must receive a substantial discount for them. I accept too that
you
disclosed the offending against Victim A and must receive credit for that. Apart
from that, your own history of abuse and psychological
difficulties mitigate
culpability to a small degree.


[27]    An appropriate determinate sentence would be five and a half years
imprisonment.


Are you likely to commit further sexual offences?


[28]    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.


[29]    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: That is a significant consideration in this case. R v Mist
 [2005] 21 CRNZ 490, R v Parahi  [2005] 3 NZLR 356.

[30]   Although it is not a sentence of last resort, preventive detention is not lightly
imposed. Another significant factor in
this case is that your behaviour is not among
the most serious of sexual offending: R v Parahi  [2005] 3 NZLR 356 at [85]-[86].


[31]   Turning to the reports, the probation officer assesses your risk of reoffending
as high, pointing to your
attitude that you had the consent of your victims, your
recidivism, your cross-gender victimisation, unwillingness to make amends
to your
victims, and the failure of your previous treatment programme.


[32]   As required under the Sentencing Act, I have two
health reports. The first is
by Dr Jane Freeman, a clinical psychologist with the Department of Corrections.
She reviewed your history,
including your report of sexual abuse in your own
childhood, relationship difficulties, and a chronic work/life imbalance.      
     She
concluded that there are some characteristics of a dependent personality disorder
with some sexual dysfunction, which has
led you to view children as appropriate
sexual partners who are less likely to reject you.


[33]   Dr Freeman assessed you using
the Static-AS, Stable-2000 and Acute-2000
actuarial and structured measures.      She concluded that there is a high risk of
committing
further relevant sexual offences while in the community.             I note,
however, that the risk measures have only a moderate
level of convergence. The
Static-AS measure would produce a medium-high risk of reoffending, and the
Stable-2000 measure indicated
a moderate risk. Her conclusion that the risk is high
focuses rather on the large number of your victims, your indiscriminate offending
against children of both genders and of a wide age range, your previous treatment
failure, and the difficulty posed by your personality
characteristics.


[34]   The other report was prepared by Dr Rosie Edwards, a consultant forensic
psychiatrist. She noted the difficulty
of predicting reoffending in the future. While
you are thinking about your offending, you have yet to fully understand what
triggers
it, and it is not possible to know what circumstances, knowledge or coping
strategies may change for you in the future. The Static-1999
measure assessed your
chance of reoffending at only 12% in the first five years of liberty, but she believes
that the score underestimates
your risk. Dynamic factors include your tendency to

minimise responsibility and attribute some blame to victims, to justify your
offending due to your feelings of loneliness, chronic insecurities and immaturity, and
your poor ability to regulate your behaviour
especially at times of stress. She too
emphasises your failure to complete a sexual offenders' programme. However, she
concludes
that you could benefit from a programme for sexual offenders.


[35]   Dr Barry-Walsh, a consultant forensic psychiatrist, has prepared
a report at
the request of your counsel. You explained to him that you contacted Wellstop two
days after the incident with complainant
E, saying that you did not like what you
were doing and knew that you would be caught if you didn't stop. You reported that
the offending
occurred during a period of low mood and distress over your
relationship with your wife, who he interviewed. He opined that you have
some
substantial personality problems, particularly low self-esteem, inadequacy, disturbed
sexuality and vulnerability to depression.
   These qualities are connected to the
offending. Like the other experts, he noted a tendency to minimise your offending
and limited
empathy for the victims. He concludes that in the absence of treatment
your current risk of further sexual offending must be considered
high. But there are
a number of interventions that may substantially alter that risk, the most significant
being successful completion
of a sex offenders' treatment programme. There are
indications of commitment to treatment.


[36]   A very prominent consideration,
on the material before me, is that there were
long periods when you did not offend despite having the opportunity to do so. Those
periods are 1993-1998 and 1998-2006. It may be that your offending is associated
with periods of considerable stress, as you claim.
That suggests that you do have the
capacity to control your offending. I wish to make it clear that had you offended
throughout those
periods, I might very well have reached a different conclusion
about the future risk that you present.


[37]   As I have said, I
will assume in your favour that during your incarceration
you will be given access to a sex offender treatment programme. I am not
satisfied
that, having completed such a programme, you are likely to reoffend if released at
the sentence expiry date of a determinate
sentence, so the application for preventive
detention fails.

Decision


[38]   You will be sentenced to five and a half years imprisonment
on the two
charges of sexual connection with victim C, and concurrent terms on the other
charges as follows:


       a)      Sexual
connection with D and E       2½ years imprisonment


       b)      Sexual conduct with C x2             2 years imprisonment


       c)      Indecent assault on A and B          1 years imprisonment


       d)      For supplying liquor, which carries only
a fine, you will be convicted
               and discharged.


[39]   The question arises whether a minimum period of imprisonment
is required.
It is appropriate to mark the need for denunciation and deterrence, the gravity of
your offending and the harm to the
victims. There will be a minimum period of 60
percent of the sentence.


Name suppression


[40]   Turning to name suppression, I
am urged to grant name suppression because
of the impact that publication would have on your family, particularly your wife and
children.
They too must be regarded as victims of your offending. I have considered
letters from your wife, your mother, a doctor, and the
Principal of the school that
your children attend. Of particular concern is the impact on your children, the oldest
of whom is aged
eight. He has special needs. Your children have already lost
friends and are at risk of exclusion at school.


[41]   Nonetheless,
the application for name suppression has no prospect of success.
It confronts the judgment of the Court of Appeal in R v Liddell
 [1995] 1 NZLR 538.
The case had some parallels to the present; the accused had been convicted of child
abuse and the suppression issue turned on the
impact on his wife and children. There

was evidence that the wife was only just making it, while the sons, who were at
secondary
school, would almost inevitably be forced to change schools.
Nonetheless, the open justice principle required that Liddell's name
not be
suppressed.     Suppression after conviction can only be justified in exceptional
circumstances. An important consideration
in your case is that knowledge of your
offending has already made its way into the local community. The school is actively
supporting
the children as best it can, and I trust it will continue to do so. A further
consideration is the possibility that following publication
other victims might come
forward. That is a relevant consideration because Dr Edwards expresses some
scepticism about your claim
that you have fully disclosed all your sexual offending.
It will be apparent from what I have said today, Mr Upchurch, that I share
that
scepticism.


[42]    The application for name suppression is declined.


[43]    Stand down.




                         
                                   Miller J



Solicitors:
Crown Solicitor's Office, Wellington for the Crown
I M Antunovic, Wellington
for the Prisoner