Police v Henry [2006] CKHC 7; CR 310 of 2004 (20 October 2006)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

CR 310/04

BETWEEN:

POLICE

AND:

CAMERON HENRY

Sgt T Howard for Police
Mr N George for Defendant

Date of Sentence: 20 October 2006

SENTENCE OF WESTON J

[1] Mr Henry, it is now my job to sentence you. You have pleaded guilty to three offences of indecent assault in breach of s. 146 of the Crimes Act and as the Prosecution said, each offence carries a maximum penalty of 10 years imprisonment.

[2] There are certain common features to your offending. The three offences have all involved young girls, all indeed were under the age of 10, and the youngest was aged 4 at the time the offence occurred. It appears you kissed or touched the genital areas in at least two of the three cases. It is quite true, as your counsel said, there was no physical evidence of abuse or penetration but the evidence given in the depositions and the Police summary of facts clearly points to you kissing or touching the genital areas in several cases.

[3] The names of the three girls are permanently suppressed. I am going to refer to them as Victims A, B and C. I suppress the following details of your offending other than as to the ages of the girls.

[4] Victim A was the 4 year old. On the 22nd of May you took her to your residence in Aitutaki and you lay her on the bed. You told her to pull her pants down and when she refused to do that, you pulled them down yourself. You then kissed her around the genital area and you stopped when you were disturbed by a witness.

[5] The Probation Report says that you took the girl with you to your home with no intention of indecently assaulting her but that is what you have pleaded guilty to doing to her.

[6] Victims B and C. Those offences both took place on the same day in April 2005 and the girls were the age of 9 and 7 years respectively. You took them to your house, had them take their clothes off and have a shower. You then dried each of them with a towel. Victim B says you looked at her genital area including lying on the floor to do so. Victim C says that you touched her vagina and also kissed her.

[7] When questioned by the Police you admitted drying both of those victims but you denied indecently assaulting them. As I read the Probation report, you now deny asking them to come to your place but even if that is true, you have, again, pleaded guilty to the allegations of indecent assault on those two girls.

[8] I have read the victim impact reports. With respect to those who prepared them, they are not particularly helpful, however, they are helpful to the extent that they state the upset of the parents and I do weigh that seriously. I am not prepared to speculate that if the parents have been told x or y, they would have thought differently. These are young girls and they are entitled to be very upset at what has occurred and I do view their wishes as being of significance.

[9] What you did was a complete abuse of trust and the Court does have to have regard to that in fixing sentence.

[10] I have read the Probation report carefully. It speaks of your good upbringing. It speaks of your Christian values and I must say I have to question those. It seems odd that a person who professes strong Christian values should act as you did.

[11] Your brother, who has a very high profile in this community, has spoken on your behalf and I respect that. It is a brave thing to do in these circumstances but a brother’s love is an important consideration and I take that into account.

[12] You are a retired school teacher. That though, in my opinion, means that you should be more aware of these issues, rather than less. I note that your wife and your step daughter support you and again I value that and admire their courage in sticking up for you in these difficult circumstances.

[13] Your counsel has said that you express remorse. Frankly, I don’t see that. All the papers that I have seen including what was handed up today strikes me as someone who really is not prepared to accept what they have done. So I am not going to give you much credit for remorse, because I do not see a lot of it. You are however aged 76 years and that is something that I do need to take into account. I also take into account that you have a previous conviction relating to the manslaughter of your daughter in 1977.

[14] Mr George has said that these are technical offences. I do not accept that. I do accept that they tend to be at the lower end of the scale, but I do not accept that they are technical. He has pointed to your family, in addition to those I have already mentioned standing behind you and that is a tremendous thing for you but we do not have the family of the girls here as the antidote to that.

[15] He speaks of you having had in effect a term of imprisonment already on Rarotonga because you have been here for 18 months. I think that is a relevant point but I do not give it as much weight as your counsel would suggest. He has emphasized that you have been well behaved on bail and that is something too I will take into account although you would not be the first person charged with reasonably serious crimes who has subsequently behaved well because the spotlight has been on them during that period.

[16] In my opinion, the starting point for sentencing you in the circumstances would be a term of imprisonment of somewhere between one and two years imprisonment. That would be appropriate to mark accountability and principles of general deterrence. However, I obviously have to take into account other factors as discounting downwards from that. There is your age which I have already mentioned. There is also the guilty plea, albeit, a very late guilty plea. The girls were not put through the trauma of an actual trial, but it was their expectation right up to the very last minute that they would have to give evidence against you. And as I have said also, I do not discount in any real way for remorse.

[17] I do not accept your counsel’s submission that there should be no custodial sentence. You will go to prison. The only issue is for how long.

[18] Mr Elikana has supported the Probation recommendation of 3 months. When I came on to the bench this morning, I thought that was too soft. I did not think it was enough, but I have listened to the submissions. I still think 3 months is too short but I am going to sentence you to 4 months imprisonment, plus 12 months probation on the island of Aitutaki following that.

[19] The suppression order on your name is at an end.

Judge