ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR
IDENTIFYING PARTICULARS OF THE COMPLAINANTS.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA374/2011
[2011] NZCA 598
BETWEEN
GARY KEVIN POOLEY
Appellant
AND
THE QUEEN
Respondent
Hearing:
7 November 2011
Court:
Wild, Chisholm and Potter JJ
Counsel:
Appellant in person
K Raftery and M Davie for Respondent
Judgment:
30 November 2011 at 10.00 am
JUDGMENT OF THE COURT
The appeal, which is against sentence only, is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
[1]
Mr Pooley appeals against a sentence of nine years imprisonment with a
minimum period of imprisonment of four and a half years. The sentence was
imposed by Duffy J in the Auckland High Court on 20 May this year.1
1
R v Pooley HC Auckland CRI-2010-092-1202, 20 May 2011.
POOLEY V R COA CA374/2011 [30 November 2011]
[2]
Mr Pooley had pleaded guilty to 16 charges of sexual offending against
young children. Those guilty pleas were entered after Mr Pooley‟s counsel at the
time, Mr Mann, had negotiated the withdrawal of eight other charges in the
indictment.
[3]
Mr Pooley contends the sentence is manifestly excessive and inappropriate.
Mr Pooley put it to us that the appropriate sentence was one of community work. He
had made the same suggestion to the probation officer who interviewed him in order
to prepare a pre-sentence report for the Judge. The recommendation in the report
was „a long term of imprisonment‟.
[4]
Regrettably, a key feature of this judgment will be Mr Pooley‟s continuing
lack of insight into these crimes: his lack of any real grasp of how serious the
offences were, of the emotional harm they caused to the victims, and of the
inevitability of a lengthy sentence of imprisonment. Mr Pooley‟s inability to grasp
these matters was a feature of the psychiatric and pre-sentence reports Duffy J had,
and of her sentencing remarks.
The crimes
[5]
The crimes spanned about four years, from mid-2005 to the early part of
2009.
[6]
They were committed against six young children whose ages, at the time of
the offending, ranged from five to 12. Four of the victims were girls, two boys.
[7]
The victims were all children who lived in homes neighbouring that of
Mr Pooley. He befriended the children and a trusting relationship between some of
the children‟s caregivers and Mr Pooley developed, so that some of the children were
allowed to stay at Mr Pooley‟s home overnight. The children liked visiting or
staying with Mr Pooley because he gave them lollies, chocolate and money, and
allowed them to watch movies and to swim in his pool. He also took them out for
meals, including to McDonalds, and paid for the food.
[8]
The worst offending was against one of the young girls we will call M. On
several occasions Mr Pooley induced M to suck his penis, and on other occasions he
sucked or touched her breasts, kissed her on the mouth and had her pose for
photographs naked, including on one occasion a photograph of her holding her
vagina open. M was aged between seven and 11 at the time of this offending.
[9]
The offending against the other girls included touching their genitalia and
bottoms and, in the case of one girl, pulling his pants down and exposing his penis to
her.
[10]
The offending against the two boys involved encouraging them or asking
them to pull their pants down for monetary reward. Although Mr Pooley looked at
the boys in this semi-naked state, he did not touch them.
The sentence
[11]
After detailing the facts of the offending, the Judge commented on
Mr Pooley‟s lack of any real insight into his offending. The Judge commented:2
… It seems you lack a real appreciation of the seriousness of the charges
you face. You have failed to realise that they will lead to a substantial
sentence of imprisonment.
…
The impression I have had from reading the psychiatric report is that you are
someone who has managed to sustain a marriage over a considerable period
of time; you have worked hard; you have done well in life. But from time to
time, the type of conduct that has brought you to Court today has manifested
itself. I consider that you actually have a significant problem, which you
have failed to own up to. In the past you were given the opportunity to
attend rehabilitative programmes which may have helped you. But it seems
that either they have not worked or, in relation to your last attendance at a
“SAFE” programme, you did not complete them. Until you do something
about the unacceptable sexual behaviours that seem to have dogged your
life, you will remain at risk of offending …
[12]
The Judge then noted3 that Mr Pooley‟s counsel, after initially making a
different submission, accepted the Crown‟s submission that the totality of
2
3
At [19] and [21].
At [30].
Mr Pooley‟s offending placed him at the lower end of rape band three as described in
this Court‟s guideline decision R v AM.4 Rape band three has starting points in the
range 12–18 years, depending on the number and seriousness of aggravating
features.5
[13]
The Judge also recorded that Mr Pooley‟s counsel accepted that the following
five aggravating features were present here: planning and premeditation (though
limited, the offending being opportunistic in most cases); vulnerable victims; harm to
the victims; scale of the offending – that is, the period over which it was committed,
and the number of victims (though counsel contended the scale was moderate);
breach of trust.
[14]
The Judge then indicated that she intended taking, as the lead offences, those
involving Mr Pooley inducing M to suck his penis. She noted that R v AM treated
penile penetration of the mouth as equivalent to rape for sentencing purposes. The
Judge then went through the various aggravating factors. She assessed the degree of
planning and premeditation as moderate, because of the elements of opportunism.
Also moderate in the Judge‟s assessment were the breach of trust involved and the
scale of the offending. A particular point Duffy J made was the lack of any violence
beyond what was inherent in the offences themselves.
[15]
The Judge observed:6
The lead offences are particularly serious, as indicated by the high potential
penalty, and particularly when they are committed against a child. The other
offences are less serious and would fall under a different sentencing
approach without the connection to the lead offences.
[16]
The Judge took as her sentencing starting point a term of 12 years
imprisonment, noting that that was the lowest starting point in rape band three. She
indicated that the sentences she imposed on the other offences would be concurrent,
as they were clearly offences of a similar kind and part of a connected series of
offending.
4
5
6
R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
These aggravating features or “culpability assessment factors” are listed in R v AM at [37]–[64].
At [50].
[17]
The Judge said there were no personal aggravating factors.
[18]
Given that the guilty pleas were not entered at the earliest opportunity,
Duffy J considered that a 20 per cent discount was the appropriate one for the guilty
pleas. To that she added a further five per cent discount for Mr Pooley‟s “previous
good record”, commenting:7
The fact is that even though you seem to have a predisposition that has
caused you to offend in a similar way in the past, you have nonetheless
managed to maintain a good and law-abiding lifestyle for a long period of
time and that is to your credit.
[19]
The Judge then turned to consider whether she needed to impose a minimum
period of imprisonment (MPI). This was the way the Judge explained her decision
to impose an MPI, and to set it at four and a half years:
[67]
However, I am concerned that you have not indicated that you
understand the seriousness of your offending or the victims‟ trauma. Nor is
there any significant remorse. Further, you have already expressed a view to
the probation officer that you do not feel a sentence of imprisonment would
deter others, as it did not deter you; though you did indicate that the criminal
justice process was a personal deterrent. Thus, it appears to me that a longer
sentence may be warranted to indicate the level of seriousness of the crime
in order to deter you in the future.
[68]
The protection of the community is particularly important, given the
vulnerability of the victims and how recently and prolifically you offended.
Again, you have not demonstrated remorse; it is likely you may reoffend,
increasing the need for community protection.
[69]
I accept that one of the strongest arguments against the imposition of
a minimum period of imprisonment is your age. You are currently 69 years
old. It is arguable that you will not pose a significant risk to children due to
your age. On the other hand, your offending was recent and lasted for four
years.
[70]
I consider that a minimum period of imprisonment is appropriate to
deter you and others, and to protect the community. I consider that term
should be four and a half years.
Mr Pooley’s submissions to us
[20]
Appearing for himself Mr Pooley made these points to us, in roughly this
order:
7
At [57].
(a)
He was persuaded not to go to trial and to plead guilty.
(b)
He does not appreciate the seriousness of “these things” because they
are exaggerated. The offending against M occurred because M asked
Mr Pooley if she could suck his penis. It only lasted 15 seconds
before he pushed her away because he could not stand it.
(c)
He was appalled at sentencing at the allegations that were being made
against him, and thought he had “a bit of a raw deal”.
(d)
He does not challenge the sentence of nine years imprisonment.
(e)
He does not agree with the MPI of four and a half years and considers
that the MPI would not have been so great had he gone to trial.
(f)
He has so much remorse “it‟s unbelievable”.
(g)
He has been let down by people he tried to help.
(h)
His present partner is the best thing in his life. He wants to get out of
prison. There is no possibility of his offending again.
Decision
[21]
A number of good things can be said about Mr Pooley. At the age of 69 he
was appearing before the Court as a first offender, with the exception of a conviction
for indecently exposing himself to young neighbours when he was 32. That was
about 37 years ago. He has undoubtedly worked very hard all his life, using his
skilled training in the telecommunications industry. He was married for 35 years and
has three adult children. Although he and his wife are now separated, they remain on
friendly terms and we are told she has continued to visit him in prison, and give him
moral support. He has similar support from his new partner. Indicative of these
commendable attitudes is this comment which the probation officer records in the
pre-sentence report:8
He [Mr Pooley] added that if he went to prison he would not feel that he has
paid his “debt to society” in that a custodial sentence will cost the taxpayer a
great deal of money which sits uneasy with him. “I would hate to think I
would be living off the taxpayer ... I have never bludged in my life”.
[22]
Although that comment is commendable in one sense, it demonstrated further
to the probation officer, and thus to the Judge, Mr Pooley‟s regrettable lack of any
real appreciation of the seriousness of the charges he faced, and the inevitability of a
lengthy term of imprisonment.
[23]
Further and alarming demonstrations of this lack of insight in the probation
report are Mr Pooley‟s puzzlement when it was suggested to him that the offending
may have caused harm to his young victims. The report noted his response “I would
hate to think I‟ve caused them any damage”.
[24]
Perhaps even more concerning is his claim to the probation officer that the
offending, including the most serious offending, had been initiated by the victims
who were really to blame for it.
[25]
Mr Pooley‟s submissions to us indicate that his alarming lack of insight
continues. Significantly, he continues to claim that offending – or at least that
against M – was initiated by the young victims.
[26]
Mr Pooley‟s counsel at sentencing rightly accepted that the offending was in
R v AM rape band 3, and the Judge set her starting point right at the bottom of that
band. Whilst that was appropriate, the starting point could not have been lower
given that five of the aggravating factors identified by this Court in R v AM were
present.
[27]
Further, Duffy J considered “that a longer sentence may be warranted to
indicate the level of seriousness of the crime in order to deter you in the future”.9
8
9
Case on Appeal at 29.
At [67].
The Judge made that observation against the background of these comments in the
pre-sentence report:10
With no prior convictions, the departmental risk assessment tool is unable to
predict a risk of re-offending. With offending of this nature, the writer is not
confident to predict risk with regards to any future offending. Of concern is
his lack of insight into the seriousness of his offending and apportioning
blame on the victims who he considered were receptive to (or even
initiating) sexual acts.
[28]
The Judge also had a psychiatric report prepared just a week or so before
sentencing.
The reporting psychiatrist Dr Pillai expressed the opinion that
Mr Pooley:11
… presents with two paraphilias: paedophilia and exhibitionism. This refers
to enduring and perverse patterns of sexual arousal related to self exposure
and children. The expression of these paraphilias has often been mixed.
Later in the report Dr Pillai stated that those paraphilias may be amenable to
treatment through the Department of Corrections, and recommended that treatment.
In our view those disorders and the desirability that Mr Pooley be treated for them
further justify the Judge‟s sentencing starting point.
[29]
When all these matters are factored in the Judge‟s 12 years sentencing
starting point is unassailable.
[30]
The total sentencing discount of 25 per cent is equally unassailable. Whilst
Mr Pooley expressed remorse for his offending, that needs to be set against his lack
of any real insight of its seriousness, and of the harm it has done to his six young
victims, harm that will likely continue into the future.
[31]
That lack of insight meant that an MPI was unavoidable. We agree with the
Judge that each of the four considerations set out in s 86 of the Sentencing Act 2002
was engaged here. In particular, given Mr Pooley‟s lack of insight, and thus the risk
that he would again offend against children (despite his age), deterring him from
doing so and protecting the community were to the forefront.
10
11
Case on Appeal at 29.
Report on appellant by Dr Krishna Pillai, Consultant Psychiatrist, 9 May 2011, at 10.
[32]
We can see no error in any aspect of the sentences imposed by Duffy J.
Result
[33]
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent