R v Linton
[2014] NZHC 2111
•4 September 2014
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S
203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2012-009-013358 [2014] NZHC 2111
THE QUEEN
v
PETER JAMES LINTON
Counsel: B D Vanderkolk and E M FitzHerbert for Crown
M J Callaghan and L M Drummond for Prisoner
Sentence:
4 September 2014
NOTES ON SENTENCE OF COLLINS J
Introduction
[1] Mr Linton, you appear for sentence in relation to 28 charges. Those charges fall into three categories:
(1)Six charges of performing an indecent act or assault on a boy aged under 12.1 Your victims were 11 years old at the time of your offending;
(2)Nine charges of performing an indecent act on a boy aged between 12 and 16 or inducing your victims to perform an indecent act;2 and
(3) Thirteen charges of sexual conduct with a young person under 16.3
1 Crimes Act 1961, s 140(1). Maximum penalty is 10 years’ imprisonment.
2 Section 140A(1)(b) and (c). Maximum penalty is seven years’ imprisonment.
R v LINTON [2014] NZHC 2111 [4 September 2014]
[2] Your offending involves five victims and spans from 11 December 2000 to
28 January 2009. Fifteen of the charges are representative charges.
[3] The crucial question I have had to carefully reflect upon is whether I should sentence you to preventive detention or a long finite period of imprisonment.
[4] I have decided, by the narrowest of margins, to sentence you to a long finite period of imprisonment.
[5] In sentencing you I shall:
(1)describe your offending and the impact of your offending on the victims;
(2) examine your previous offending;
(3) review your personal circumstances;
(4) explain why I am not imposing preventive detention; (5) explain the starting point to your sentence;
(6) explain the adjustments that I am making to that starting point to
reflect:
the totality of your offending;
your prior offending; and your guilty plea.
(7) set out the minimum period of imprisonment that you must serve; and
(8) explain your final sentence.
3 Section 134(3). Maximum penalty is 10 years’ imprisonment.
Your offending and its impact on your victims
[6] Your first four victims are part of a wider family group. You befriended their parents, gained their trust and confidence and ingratiated yourself into their lives. You also, later in your cycle of offending, befriended the fifth victim’s mother.
[7] You babysat your first four victims and employed all of your victims to do manual work.
[8] Over a two year period you engaged in indecent touching, mutual masturbation and oral sex with your first victim who was 14 and 15 years old at that time.
[9] Over a five year period you engaged in multiple acts of indecent assault, mutual masturbation and oral sex on your second victim who was aged 11 when your offending against him commenced. Thirteen of the charges relate to your second victim.
[10] One of the charges relates to your third victim but the summary of facts shows you repeatedly attempted to obtain sexual favours from this victim.
[11] You offended against your fourth victim over a three year period. You performed oral sex on this boy and engaged in mutual masturbation.
[12] You offended against your fifth victim on two occasions by masturbating him. This victim put a stop to your offending.
[13] Your offending involved extensive grooming in which you gained the trust of your victims and their families. You then took advantage of your position to offend in the way I have described.
[14] The impact of your offending on your victims has been immense. They describe how their pride and dignity has been affected and how they feel disgusted and horrible with themselves. One victim describes how he became an emotional
wreck and how your offending has totally undermined his ability to have normal trusting relationships.
Your previous offending
[15] In 1996 you were convicted on five charges of offending that is almost identical to the offending for which you are to be sentenced today. Your offending at that time covered two distinct periods, namely:
(1) June 1966 to 1 February 1967;
(2) 1 November 1995 to 12 January 1996.
There were four victims during these periods whose ages ranged from 11 to 13. In
1996 you were sentenced to 18 months’ imprisonment for this offending.
[16] You also have convictions that were imposed in the Hamilton District Court in 1967 for indecent assault on a boy aged under 16 and two charges of inducing a boy to do an indecent act. On that occasion you were sentenced to three years’ probation.
Your personal circumstances
[17] You will be turning 69 in two months’ time. There is a very brief report from a general practitioner which says that you have had prostate issues and that since February 2011 you have not been able to achieve an erection and that you have lost your libido. I do not interpret this as meaning you are necessarily less likely to reoffend because of your prostate issues.
[18] Since 2011 you have been living in a Christian community in the South Island. The Chief Executive of that facility has commented favourably on the contributions you have made since joining that particular Christian community.
Why I am not imposing preventive detention
[19] Your victims and the community deserve an explanation as to why I am not imposing preventive detention. As I have already stated, the decision not to impose preventive detention was a very finely balanced assessment.
[20] You have come perilously close to being sentenced to preventive detention because of:
(1) the emerging pattern of your serious offending;
(2)the seriousness of the harm to the community caused by your offending; and
(3)the possibility of you, in the future, committing serious sexual offences against pubescent boys.4
[21] I was particularly concerned by comments in the reports provided by Ms Fon and Dr Barry-Walsh.
[22] Ms Fon said that your:
… prior sexual offending is … indicative of an entrenched predilection and proclivity towards sexual contact with pubescent and post pubescent males in the absence of any satisfying or desired sexual relationships with age appropriate partners. …
[23] Dr Barry-Walsh said you have:
… a history of chronic sexual violence [and that] the time over which [your] offending occurred … [involved] grooming and therefore psychological coercion …
[24] Ms Fon said there is no evidence that your risk of reoffending will disappear as a function of age or restrictive physical access to victims. Dr Barry-Walsh says he
has “considerable concern about the possibility of [you] reoffending”.
4 Sentencing Act 2002, s 87(4)(a)-(c).
[25] There are two factors which have tipped the scales by a very narrow margin against imposing preventive detention.
[26] First, I believe you should be given the opportunity to participate in an intensive programme designed to address the causes of your offending, such as Te Piriti or Kia Marama before imposing the ultimate penalty of preventive detention. I am influenced by Dr Barry-Walsh’s suggestion in his first report that you may benefit considerably from a sexual offender treatment programme and that with this intervention and with the passage of time and a carefully planned and well- managed return to the community it is possible that your risk of further offending will be substantially modified.
[27] I accept that when you were last sent to prison the Kia Marama programme was not offered because of the short length of the prison sentence imposed on you at that time. The prison sentence that I will impose will give you every opportunity to participate in an appropriate programme and provide you with the chance to demonstrate that you can respond appropriately to such a programme.
[28] Secondly, I believe that in your case a finite sentence is preferable to a sentence of preventive detention because of your age and health circumstances.
Starting point for your sentence
[29] I treat your offending against the second victim as being the most serious because of its frequency, duration and nature. I accordingly adopt your offending against the second victim as being the lead offending for sentencing purposes.
[30] In my assessment, your offending in relation to the second victim warrants a
starting point of five and a half years’ imprisonment. I have reached this conclusion
after considering similar cases and evaluating the gravity of your offending.5
5 Walker v R [2010] NZCA 288; Paki v R [2013] NZCA 279; Anson v R [2014] NZCA 135; R v
Thorpe [2012] NZHC 229; R v Lynch [2014] NZHC 1788 and Hartley v R [2014] NZCA 162.
Adjustments to starting point
Totality
[31] Section 85 of the Sentencing Act 2002 requires me to have regard to the totality of your offending.
[32] In my assessment, the starting point of five and a half years’ imprisonment
needs to be adjusted upwards by a further two and a half years’ imprisonment to
reflect:
the number of charges against you; and
the number of victims you have offended against.
[33] I am particularly concerned by the way you methodically groomed each of your victims in a calculated and unremorseful manner. You were clearly a very predatory offender.
Previous offending
[34] Section 9(1)(j) of the Sentencing Act 2002 requires me to take into account the number, seriousness, date, relevance and nature of your previous convictions.
[35] While I must resist punishing you again for your previous offending, the seriousness and relevance of your earlier offending leads me to the conclusion that I must further increase the sentence I am going to impose to reflect your previous offending. This increase shall be another one year imprisonment.
[36] This produces a sentence of nine years’ imprisonment before any reductions
are made to reflect mitigating factors.
Mitigating factors
[37] The Crown accepts that you are entitled to a discount to reflect your guilty plea. I agree. I note the charges were laid on 29 November 2012. You pleaded
guilty on 18 March 2014, 16 months after the charges were laid. I accept there were some explanations for that delay. However, you cannot be given credit for pleading at the first available opportunity. I will, however, give you a discount of 12 months’ imprisonment to reflect your guilty pleas.
[38] I have considered giving you a further discount to reflect your age and personal circumstances. However, because those were factors that influenced my decision not to impose preventive detention, I shall not take those factors into account again when determining your final sentence.
Minimum period of imprisonment
[39] In your case I believe it is necessary to impose a minimum period of imprisonment in order to:6
(1) hold you accountable for the harm you did to your victims and to the community;
(2) denounce your conduct;
(3) deter others from similar offending; and
(4) protect the community from you.
[40] The minimum period of imprisonment that you must serve is four years. I
believe that is the least restrictive outcome that can be achieved in your case.
[41] In reaching this conclusion I have reflected on whether the sentence I am about to impose adequately reflects the purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act 2002.
[42] I am satisfied those purposes and principles are achieved by the sentence I am about to impose. In particular, it is the least restrictive sentence that can be imposed in the circumstances of your case.7
Conclusion
[43] Mr Linton, can you please stand.
[44] On Charges 6, 7, 8, 9, 10, 15, 16, 17 and 18 which are the offences against the second victim which carry a maximum penalty of 10 years’ imprisonment, I am sentencing you to sentences of eight years’ imprisonment in relation to each of those charges.
[45] In relation to all other charges, I am sentencing you to five years’
imprisonment.
[46] All sentences are to be served concurrently. This means the time you will be serving in prison for all of your offences will not exceed eight years.
[47] You must, however, serve a minimum period of four years’ imprisonment
before you can be considered eligible for parole.
[48] Stand down.
D B Collins J
Solicitors:
Crown Solicitor, Palmerston North