R v Lynch

[2014] NZHC 1788

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2012-054-001412 [2014] NZHC 1788

THE QUEEN

v

JOHN BURNARD LYNCH

Counsel:

D J Flinn for Crown

O S Winter for Prisoner

Sentencing:

30 July 2014

SENTENCING NOTES OF WILLIAMS J

[1]      Mr Lynch on 8 November 2013, a jury in the District Court found you guilty on eight counts of indecently assaulting a girl under 12.   Six of the counts were representative  charges  and  two were  individual  counts.   When  he reviewed  the matter, Judge Lynch, who was the presiding Judge, considered that a sentence of preventive detention could well be appropriate here (in light of your history of sexual offending) and so your sentencing was removed to the High Court to consider that.

[2]      In this sentencing, I will summarise the procedural background to this case.  I will then outline the facts of your offending as found by the jury in the District Court, then I will address the question of a finite sentence – beginning with a starting point for the offending, then considering factors relevant to you personally before identifying a final finite sentence.  Then, and only then, will I address the question of whether preventive detention is justified in your case, and I will reach conclusions

and pass sentence.

R v LYNCH (SENTENCING) [2014] NZHC 1788 [30 July 2014]

Procedural history

[3]      In this case the initial charges were more serious against you than those with which the Crown ultimately proceeded.  The initial trial was adjourned because the victim who I will call ‘T’ suffered a medical issue.

[4]      When the matter came back to the Court for hearing, there was a mistrial because  it  seems,  as  the  victim’s  evidence  unfolded,  the  more  serious  sexual violation charges could not be supported.  The jury was discharged and after another adjournment because of material published in the local newspaper, the trial finally proceeded in November last  year as  I indicated.   This time  though, the Crown proceeded only with the eight indecent assault counts that I have mentioned at the beginning.

The facts

[5]      I note at the outset Mr Lynch that you reject the jury’s verdicts and maintain your innocence.  You are supported in that stance by Rosemary Kauri, your former partner and the person who you continue to care for; and by Susan Vincent who, it seems, grew up around you.  She is the daughter of Rosemary Kauri and she says that nothing like the allegations, in this case, occurred to her.

[6]      All of that may be so Mr Lynch, but I of course must sentence you on the basis of the jury’s verdicts entered following the trial.  So your ongoing denials, even if genuinely felt by you are not relevant to me except where they reflect your refusal to address the causes of your offending.   I will come back to the point of your offending later in my comments.

[7]      All eight counts relate to the same victim.  She is a relation of your house mate and former partner.  You were a father figure to her and she came to call you Dad.   The offences occurred in a three year period from about February 2004. During that time the victim and her mother regularly visited your home after school, at night, and during school holidays. Your offences occurred in four episodes.

The birthday party

[8]      T turned nine in February 2004.   A party was held at your house for her. After the party her mum went out and T slept on the floor of the bedroom you shared with your then partner.  You got out of bed, crouched over the victim and put your hand up her night dress to touch her between her legs.  You stopped when you heard the victim’s mother return home and the victim left the bedroom.  The evidence was the contact was skin on skin.

Van offending

[9]      You regularly drove to the Palmerston North dump to collect whiteware for repair and sale.  You often took T with you.   On one such trip at some time after

8 February 2004, T complained that her bra was uncomfortable.   You removed it, while at the same time stroking her back and grabbing her breast.  You then rubbed your penis with your hand over and then under your trousers for a short time.  You told T not to tell anyone what had happened.

First shower offending –representative Counts 3 and 4

[10]     These are the representative counts covering the whole three year period.

[11]     T would stay at your house with yourself, your then partner and sometimes T’s mother.  The bathroom was altered to allow special access for your then partner (and person who now care for) because she had suffered a stroke some years earlier. There was room for a second person therefore to assist in the showering process.  It seems you used this as an excuse to come into the bathroom while T was washing to help wash her hair or her back as she showered.  While doing this, you would press your penis against her bottom from behind or between her legs while she was facing you.  Most of the time T was wearing a towel and you had your pants on, but there were  times  when  you  undid  your  pants  and  pressed  your  penis  against  her underneath her towel.   The towel would be pressed upwards by what you were doing. Again you told her not to say anything about what had happened.

Second shower offending – representative Counts 5 and 6

[12]     These offending also relate to representative counts.

[13]     While T was showering, you would enter the bathroom and touch her bottom, probably, she said, with your hand.  She thinks these events occurred after her tonsils had been removed at about age 11.

Video room offending – Counts 7 and 8

[14]     You had a shed at your home that you used as a workshop.  You called it the “video room” and you would occasionally watch pornographic movies there.  Only you used the shed, no-one else was allowed in except with your express permission. You would invite T into the video room with you.  Sometimes you both would just talk, but sometimes you made T sit on your lap and watch pornographic movies with you.  You asked her if she liked watching these kinds of movies.  While sitting on your lap, you would touch T on her chest, bottom and between her legs, both on top of, and under her clothes. And you would also grind your penis against her back.

[15]     These are the facts of the eight counts as reflected in the jury’s verdicts.

Finite sentence – starting point

[16]     I am going to now move to the question of a finite prison sentence.

[17]     Mr Lynch, there is no doubt that your offending, as found by the jury, abused the position of trust and power you held over T.  You were her father figure and she called you Dad.  There was also no doubt she was (as a child) extremely vulnerable to you and your sexual preoccupation with pubescent girls.   Other potentially significant factors are that the offending was repeated over a lengthy period, three years, and that it caused significant psychological damage to the victim as shown in her victim impact statement read out in Court.

[18]     Some of the assaults were skin on skin touching making them more serious than touching through clothes.

[19]     In setting a starting point, I must hold you accountable and responsible for the  harm  you  have  caused  to  this  young  woman,  and  I  must  take  proper  and consistent account of the seriousness of your offending.

[20]     In the end there is little between prosecution and defence counsel as to what the starting point should be.  No-one suggests a sentence other than imprisonment.

[21]     When I look at cases of a similar nature to your case,1  I consider that a starting point of three and a half years’ imprisonment is justified.

Personal factors

[22]     I turn now to personal factors to see whether that starting point needs to be adjusted.

[23]     The most significant matter here is your history of prior sexual offending against both young girls and boys, as well as adult females.  You have accumulated

16 convictions for relevant sexual offending from 1996 on, including 14 against pubescent or adolescent girls. This pattern is very troubling indeed Mr Lynch.

[24]     In addition, you completed treatment at the Kia Marama Special Treatment Unit for child sex offenders in 1993.  Your progress was described as “fair” but you learnt coping skills to deal with your sexual preoccupation.  All of that said, your current convictions amount to a significant return to your old ways.  A significant uplift in your starting point is required to address that.

[25]     On the other hand, I am also aware of your age and ill health.  You are at the early stages of renal failure.   I have been told this morning that you have arterial problems that may well necessitate a heart bypass, and you are of course 68 years

old.

1      especially [CA 643/2009] O v R [2010] NZCA 609 that has a number of similarities to this case but see also Anson v R [2014] NZCA 135 and Walker v R [2010] NZCA 288.

[26]     I bear these competing factors in mind and consider that your starting point of three and a half years should be uplifted by 12 months to four and a half years. Were it not for your age and ill health, I may well have considered a greater uplift.

Finite sentence

[27]     There are no other relevant factors for adjustment.   I would therefore have imposed a sentence of four and a half years’ imprisonment for the totality of your offending.

Preventive detention

[28]     I must now consider whether I should not impose that sentence on you, but should instead impose an indefinite sentence of preventive detention.  It is important to  remember  that  a  preventive  detention  sentence  is  not  about  punishing  you Mr Lynch, but about protecting the community from you.  I should only impose such a sentence if I find that you pose a significant and ongoing risk to community safety.

[29]     I have been provided with three psychological reports to help me make that assessment.

[30]     The first is by Melanie Simons, a clinical psychologist, dated 24 March 2014. That report was provided for your original sentencing before it was removed to this Court to consider whether preventive detention might be appropriate.   So it was prepared without preventive detention in mind.  It nonetheless assesses your risk of further offending so I have taken it into account.  The second is from Kerry Reader, a registered psychologist, dated 20 April 2014.  And the third is by Colleen Thiel, also a registered psychologist, dated 26 May 2014.

[31]     Ms Simons interviewed you on 11 March 2014 for three and a half hours. Mr Reader interviewed you on 9 April 2014 for approximately three hours, and Ms Thiel interviewed you twice on 7 and 15 May 2014 for a total of four hours.

[32]     At the first of Ms Thiel’s two interviews, Elizabeth Waddington, a senior psychologist also attended. As far as I can tell, your current partner also attended all

interviews.  I will return to these reports when I consider each of the factors that the law says I must consider2. Those factors are as follows:

(a)       any pattern of serious offending in your history;

(b)the  seriousness  of  the  harm  caused  to  the  community  by  your offending;

(c)       any  information  indicating  that  you  are  likely  to  commit  further serious offences in the future;

(d)      whether you have failed to address the causes of your offending; and

(e)       the principle that a long but finite sentence is preferable to preventive detention if society can be adequately protected by that.

Pattern of serious offending

[33]     As  to  your pattern of serious  offending,  I have already referred  to  your history  of  similar  sexual  offending  against  adolescent  girls.    The  psychological reports  all  refer  to  your  long  term  pattern  of  sexual  offending  as  being  of considerable concern.  In particular, there is the fact that your offending continues to occur despite  you  being in  relationships with  adult women  at the time.   These patterns also show similar behaviours and strategies.  Befriending or drawing young people that are close to you through your adult relationships and then engaging in inappropriate sexual activity with the young person.  Your offending in 1971, 1982 and 1991 seem to follow this pattern.

[34]     On the other hand, there is no indication of any further offending after 2007. There has therefore, I am prepared to accept, been a significant break since your last

offending.

2      See s 87(4).  Plainly the requirements of s 87(2) are satisfied and I do not consider it necessary to refer to those requirements in my oral sentencing.

Harm to the community

[35]     I have already discussed in the context of your finite sentence, the harm that you have caused to the victim T.  But as we know, there have been other victims too Mr Lynch.   All have been harmed.   Sexual offending of the kind that you have perpetrated against young victims causes enormous damage, not just to the victims but to the wider community.   It affects the behaviour and life chances of those victims, and these things affect their families and their communities in significant ways.   All effects are negative and costly, both in money and emotional terms. Children that have been abused by adult sexual offenders tend to go off the rails in time, harming themselves and their families, and they often go through their own anti-social behaviour, harming their communities as well.   It is a familiar and consistent pattern – sadly.

Likely to commit similar offences in the future?

[36]     Each of the three psychologists applied tests aimed at predicting whether you would reoffend.  Colleen Thiel says you are at high risk according to her tests of both static and dynamic factors.   Kerry Reader agrees having applied slightly different tests.  Melanie Simons says you are at high risk on the ASRS scale but moderate risk by the STABLE 2007 scale.

[37]     Each  psychologist  emphasised  slightly  different  considerations  but  all expressed concerns at your undiminished preoccupation with sexual matters, and the fact that you offend even when you are in sexual relationships with adult females. They also identify your low cognitive ability as a likely contributing factor.   You cannot read or write, you have difficulty processing verbal information, and you have a poor memory.  Your cognitive ability is apparently in the bottom 2 per cent for your age range.

[38]     These factors undoubtedly contribute to your sexual attraction to adolescent girls, and to your ability to cope with that problem.

[39]     All of that said Mr Lynch, I am troubled by the failure of the psychologists to address your health status in any useful way.  Colleen Thiel said it is unclear how

your ill health will impact on your risk of reoffending.  You are in the early stages of renal failure, and perhaps heart failure, and you will soon need dialysis on a daily basis if you do not need it already.

[40]     These factors could well have a very significant effect on your medium term sexual vitality.   As well as on your opportunities to develop the sorts of trusting relationships with young girls that you have exploited in the past in your offending.

Addressing the causes of offending

[41]     In the past, you have addressed the causes of your offending in the Kia Marama Unit for child sex offenders.  This produced some progress and resulted in you admitting to other sexual offending that had not come to light.   But you adamantly reject responsibility for the current offending.  You say the victim is lying and the jury got it wrong.   This is a significant block to you making progress. Whether this is the result of your cognitive difficulties or other fundamental causes, I cannot say, but I am bound to apply the verdicts of the jury and your refusal to accept them must now count against you.

Lengthy finite sentence preferred

[42]     As I have said, a sentence of four and a half years is appropriate to your particular offending here in light of your history.   It is not a particularly lengthy sentence but if I consider it provides adequate protection for the community, then I must not impose preventive detention.

[43]     I  also  need  to  bear  in  mind  that  you  will  be  eligible  for  an  extended supervision order on release if you are given a finite sentence.  That order can last for up to 10 years.   Melanie Simons, the psychologist, recommends that you be assessed for such an order if you do receive a finite sentence.  Extended supervision orders provide a “safety valve” at the end of the finite sentence that I must take into account.

Conclusion

[44]     So bearing all those matters in mind Mr Lynch, although I do have concerns about possible future offending, I do not, on balance, consider that preventive detention is justified in your case.

[45]     Although you appear now to have a continuing sexual appetite, I cannot ignore the fact that you are 68 and becoming very ill.  I have no advice about the effect of your illness on your future prospects but in the absence of such advice, I still cannot be satisfied that the protection of the community requires you to be imprisoned indefinitely.  Rather, this is a finally balanced case.  There is your history of sexual offending, your rejection of responsibility for the current offending, and your ongoing sexual interest on the one side, and on the other side of the scales there is your age, the onset of a serious illness, and the fact that a four and a half year prison term is very likely to be followed by an extended supervision order.

[46]     Weighing  these  factors  up,  I  conclude  by  a  fine  but  clear  margin  that preventive detention is not warranted in your case.

Final sentence

[47]     Mr Lynch, on each of the eight counts of indecent assault, you are sentenced

to four and a half years’ imprisonment to be served concurrently.

[48]     Please stand down.

Williams J