R v Kenny

[2013] NZHC 2787

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2013-032-171 [2013] NZHC 2787

THE QUEEN

v

JASON MARK JOHN KENNY

Hearing:                   23 October 2013

Counsel:                  G A Kelly for Crown

M Bott for Defendant

Sentence:                 23 October 2013

SENTENCE OF RONALD YOUNG J

[1]      Mr Kenny before I sentence you I have to give you a first strike warning. You will also be given a piece of paper that essentially says the same thing.  But you have now been convicted of committing an indecent act on a child under 12 and I now must give you a first warning.

[2]      The  warning  I  give  you  will  warn  you  of  the  consequences  if  you  are convicted of any serious violent offence committed after this warning.  As I have said there will be a notice which records in writing the consequences.

[3]      If you are convicted of any serious violent offence except murder committed after you receive this warning you will receive a final warning.  In addition, if the Judge imposes a sentence of imprisonment for that offence other than life imprisonment for manslaughter or preventive detention, then you will serve that

sentence without parole or early release.

R v KENNY [2013] NZHC 2787 [23 October 2013]

[4]      If  you  are  convicted  of  a  murder  committed  after  you  receive  the  first warning you will be sentenced to imprisonment for life.   You must serve the life sentence without parole unless it would be manifestly unjust to do so.  If you receive a life sentence without parole you will not be released from prison.   If serving a sentence without parole would be manifestly unjust, the Judge must specify the minimum period of imprisonment you will serve.

[5]      And  so  having  giving  you  a  first  strike  warning  I  will  now  proceed  to sentence you. As I have said I formally convict you on count two and discharge you on count one.

[6]      And so you are for sentence having pleaded guilty to doing an indecent act with  a child  under 12 years  of age.   You  have pleaded  guilty after a  sentence indication hearing.

[7]      Dealing  firstly  with  the  facts.    You  and  the  victim’s  mother  began  a relationship in 2012.   The victim at the time was five years of age.   You and the victim were in the hall of their home.  You bent down to pick up the victim and as you did so you put your arm between the victim’s legs placing your hand over her vagina on the outside of her underwear.  You moved your hand slowly between her legs.  You then removed your hand from between her legs, placed it around her waist and then on her bottom over her underwear but under her dress and rubbed your hand back and forward.

[8]      You have a number of serious convictions, Mr Kenny, for sexual offending. But in this case the Crown do not seek a sentence of preventive detention.   They accept there is not sufficient likelihood of reoffending given you have accepted responsibility for your offending as well as the nature of the offending here itself and the ability to impose an extended supervision order.  You are already subject to a extended supervision order imposed for a period of 10 years.

[9]      You have two previous  convictions for sexual violation, two of indecent assault with a girl under 12, three of doing an indecent act with a boy under 12 and one of doing an indecent act with a girl under 12.  This relevant offending began in

1997 and in 2007, most recently, you were sentenced to five years three months’

imprisonment and at the time of the offending you were on parole.

[10]     The  Crown  in  their  submissions  say  in  setting  a  relevant  sentence  the following features are important:

(a)       the fact that this was a premeditated offence;

(b)secondly, that you were in a position of trust at the time with respect to the victim;

(c)       thirdly, the age of the victim at five years; and

(d)      finally, the potential harm to the victim.

[11]     The Crown say that from a relevant start sentence there should be uplifts for your previous offending and your breach of parole.  You are entitled, they accept, to a credit of somewhere between 15 and 20 per cent for your guilty plea and your acceptance of the offending.

[12]     The Crown say that a proper starting point is somewhere between 18 months and two years and if the ultimate sentence is over two years, they say a minimum period of imprisonment beyond that one third is appropriate.

[13]     I have  read  and  take  into  account  the  submissions  of  your  counsel.    In summary they are that:

(a)      firstly, you were returned to prison in 2012 because of your breach of release conditions arising from this offending and you have stayed in prison ever since;

(b)secondly, it is important that you have consented to an extended supervision order;

(c)       thirdly, you accept responsibility for your offending;

(d)fourthly, the rigorous supervision of the 10 year extended supervision order is of particular importance.  You say that there should not be a substantial uplift for past offending or breach of parole and a shorter term of imprisonment than submitted by the Crown is appropriate.

[14]     In  my  view  the  proper  start  sentence  for  this  offending  is  20 months’ imprisonment.  You were in a position of trust.  The abuse involved a very young child but on the other hand it was at the low end of the seriousness scale. You have a bad history of offending in a similar way.   In my view, an uplift of four months’ imprisonment is justified for your previous history.

[15]     There is also a modest uplift justified by virtue of the fact that you were on parole for sexual offending.   You have, I accept, been punished for that by your recall to prison but a further two month uplift, in my view, is justified.  That means a start sentence of 26 months’ imprisonment.

[16]     A full 25 per cent discount for your guilty plea cannot be justified.  You first appeared in Court in these matters in January 2013 and it was almost 10 months before you indicated your plea of guilty.

[17]     I  discount  the  start  sentence  of  26 months’ imprisonment  by  15 per cent leaving a final sentence of 22 months’ imprisonment.  This is not, in my assessment, an appropriate occasion for home detention.  The final sentence is near the two year cut off point and your past suggests continuing high risk.

[18]     I, therefore, sentence you to 22 months’ imprisonment on this charge.

Ronald Young J

Solicitors:

Luke Cunningham & Clere, Crown Solicitors, Wellington

M Bott, Barrister, Upper Hutt