R v Palenski

[2020] NZHC 1621

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

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2019-019-005351

[2020] NZHC 1621

THE QUEEN

v

TROY GEORGE PALENSKI

Hearing:	8 July 2020
Appearances:	J Hamilton for Crown T Tran for Defendant
Judgment:	8 July 2020

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Hamilton

T C Tran, Barrister, Hamilton

R v PALENSKI [2020] NZHC 1621 [8 July 2020]

[1]    Troy Palenski, you are for sentence, having pleaded guilty to one charge of sexual violation by rape, two charges of sexual violation by unlawful sexual connection, four charges of sexual conduct with a child under 12, five charges of knowingly making objectionable publications and three charges of possession of objectionable material. A number of the charges are representative charges, including the most serious ones. The maximum term of imprisonment for the most serious charge is 20 years.

[2]    The victim of your sexual offending was A. At the time she was four years old. You were 26.

[3]    During the afternoon of 5 May 2018 you were alone at home with her. Over the course of a two and a half hour period you committed a number of sexual acts on the victim and also photographed her in various sexualised and degrading positions. You used your mobile phone to record aspects of the sexual assaults and to photograph her. Throughout the offending she was wearing a t-shirt and was naked from the waist down.

[4]    You lay the victim on her back and held her legs up in the air. While she was in that position you licked her genitalia and anus. Subsequently you positioned her so that she was again lying on her back. You opened her legs and used your fingers to rub the outside of her genitalia before penetrating her labia with your fingers. Later, you placed your fingers on either side of her genitalia, before photographing the interior of her vagina. You took several photographs of the victim lying on her back with her legs together and raised before again stretching her labia apart to take close- up photographs of her vagina. While the victim’s legs remained open, you took your naked and erect penis and placed it between her legs, touching the skin in her genital area. You later penetrated her labia with your penis and penetration of that kind occurred over some three minutes.

[5]    Subsequently you sat the victim on the edge of the bed. While holding her legs up with your hand you used your penis to touch her anus and then her buttocks. Throughout the course of these sexual assaults you positioned her in various other sexually suggestive poses before taking photographs of her. A number of objectional

publications were made by you, including two videos, one lasting a minute and 28 seconds, and 24 indecent photographs. You retained and stored the recordings and images.

[6]    About three weeks later, you again recorded yourself engaged in a number of sexual acts with the victim on another occasion. You put your penis in her hands while she was naked and standing. With your penis at her eye level you had her run her hands up and down it and while she was doing that you placed your hand on the back of her head before moving it forward and causing her mouth to touch your penis. You took a 33 second video of that incident.

[7]    Four days later, on 28 May, you made a further objectionable publication involving the victim by photographing her when she was naked.

[8]    On 29 August 2019 the victim’s mother was browsing a computer at home looking for family photographs. She found the recording of you assaulting the victim and immediately contacted the police.

[9]    On 30 August 2019, the next day, the police executed a search warrant at your home address. During that search the police seized a hard drive belonging to you. It was subjected to a forensic examination by the Police Digital Forensics Unit. A folder was identified, which contained a number of objectionable publications. There were multiple sub-folders that contained approximately 77,000 pictures and 19,000 videos. The files were assessed against a regularly updated database of pre-graded child exploitation material and returned over 7,000 matches for material identified as objectionable publications by experts across various government agencies.

[10]   In excess of 7,470 files were deemed objectionable. A sample of the publications included videos and images of prepubescent females performing oral sex on males and animals and prepubescent males engaging in anal sexual intercourse. The children involved apparently came from the United States, Germany and Russia.

[11]   This morning the Court has heard submissions from the Crown, Mr Tran, and has also heard the victim impact statements from the victim’s mother, her mother, the

victim’s grandmother, the victim’s father, and the report of the victim’s current counsellor was also read.

Purposes of sentencing

[12]   In sentencing you the Court is required to have regard to the purposes and principles of the Sentencing Act 2002. There are a number of relevant purposes of sentencing in your case. First the sentence imposed must hold you accountable for the harm done to the victim of your offending, and, to the extent possible, promote in you a sense of responsibility for and acknowledgement of that harm. The sentence should also provide for the interests of the victim and other important considerations are to denounce such conduct, and to deter you and others from committing similar offending to the extent that the sentence is possible to do so. Importantly also, it is necessary to protect the community from the possibility of such offending in that way in the future.

The principles of sentencing

[13]   The Court is required to take into account the gravity of the offending in your particular case, which is reflected by Parliament fixing a maximum term of imprisonment of 20 years; the seriousness of the offending in comparison with other types of offending; and the general desirability of consistency with appropriate sentencing levels, which means I have had regard to a number of other relevant authorities. Importantly the Court is also to take into account information concerning the effect of your offending on the victim.

Victim Impact

[14]   As you know and have heard there are a number of victims of your offending, not only the principal victim but also her broader family and that includes your own son. Your actions have destroyed your family unit and seriously affected the relationship between the victim’s mother and the victim. Both placed their trust in you. Your offending has also affected the victim’s grandmother. She is obviously personally affected. She has observed the effect on the victim. The victim’s biological father has full custody now. It is apparent from his impact statement that her behaviour

has deteriorated, she has trouble sleeping, wakes up screaming and crying in the middle of the night and her trust in relation to him is also affected.

[15]   The victim’s counsellor raised similar concerns. The victim appears confused, angry, and traumatised. The emotional and psychological damage caused by you is really incalculable. It is impossible to tell what effect your offending will have on her long term as she matures.

[16]Your own family are also affected by your offending.

[17]   Mr Palenski you pleaded guilty following a sentence indication by Walker J. The Judge indicated a global starting point of 14-15 years to reflect the totality of your offending. As I have told counsel I agree with that assessment and will sentence you on the basis of that indication, including the credit the Judge considered appropriate for your early guilty plea.

[18]   Taking the lead charge of rape the starting point on the charge of rape is governed by the guideline judgment of the Court of Appeal in R v AM.1 I consider your offending falls towards the lower end of category 3 which would support a starting point of 13 years’ imprisonment. In fixing that starting point I take into account the aggravating features of your offending. There are a number. First and foremost is the vulnerability of the victim. She was vulnerable because of her age and because of the trust placed in you to care for her. You were in a relationship with her mother. Your offending involved a substantial and significant breach of trust. The offending was also aggravated by your further abuse of her by photographing the offending.

[19]   An uplift is required to reflect the totality of your other offending. While the additional separate charges would support sentences of five to six years on their own I accept that, having regard to totality, the aggregated starting point for your sentence is the upper range indicated by Walker J of 15 years.

1      R v AM [2012] 2 NZLR 750.

[20]   There are no personal aggravating factors. You have not been before the Court before.

[21]   Although as a child you experienced some bullying and suffered from dyslexia, you came from a supportive home. You had friends at school. Your parents, particularly your mother, remains supportive. She already has a heavy burden on her with your father’s illness. You are also supported by others in the community who know you.

[22]   Mr Tran has sought a credit and further reduction for your remorse and prospects of rehabilitation. I accept that the pre-sentence report overall is a positive one. It records you are taking responsibility for your actions and are open to and accepting future treatment to address the issues which led to your offending. Your letter also shows some insight into your offending. I note you have told the probation officer “I highly regret it and hate myself” and that you want and need treatment.

[23]   There is also, as I have said, good support for you in your family and in the broader community. Provided you receive treatment for the underlying causes of your offending and are able to fully understand it, you should be able to be rehabilitated and you should not reoffend in this way again in the future. Therefore there are apparently positive prospects for your rehabilitation. You are entitled to a credit for the remorse you have expressed and prospects of rehabilitation which I fix at five per cent.

[24]   Mr Tran has also sought a reduction in the sentence for good character. I am not prepared to give a further reduction or credit for good character. You were only 26 at the time of the offending. Yours is not a case of a person who has contributed significantly to the community and then suffered a momentary fall from grace. The offending, as I have said, was repeated on a number of occasions. It also involved the indecent publications that I have referred to. There can be no credit for good character.

[25]   Mr Tran also sought a further credit for mental health issues. There has been  a very helpful report prepared by Dr Barry-Walsh. In summary, the Doctor notes the reported history from your general practitioner and you and your mother disclosed

problems with your mood and perhaps a discrete depression early in the year of the offending. While that may suggest your mood may have been low around the time of the offending, in Dr Barry-Walsh’s view at best that can only be a limited and partial explanation for the offending. He had not identified any distinct psychiatric illness operative at the time of the offending. I allow a modest reduction of approximately three per cent for your mental health state.

[26]   As I have noted, the Judge has agreed a reduction of 25 per cent for the guilty plea. That guilty plea is a tangible recognition by you of your actions. It is a step towards your rehabilitation by your acceptance of responsibility for the offending you were involved in. Also, and importantly, it saves the victim and her family from the further stress of further Court appearances and the prospect of a defended Court hearing.

[27]The total credits for mitigating factors will be aggregated and applied globally.

[28]That leads to an end sentence of 10 years’ imprisonment.

[29]   The Court then has to consider whether to impose a minimum non-parole period. The Court may impose a minimum non-parole period if it is necessary to do so to meet the principles of accountability, denunciation, deterrence and protection of the community.

[30]   Mr Palenski, offending of the nature that you have engaged in could lead to the imposition of a period of a minimum non-parole period. However, given the positive indicators in the pre-sentence report and the factors Mr Tran has identified in his materials, I accept, on balance, that it is unnecessary to impose a minimum non-parole period in your case beyond that of the standard minimum non-parole period. It will be for the Parole Board to assess your response to the assessments and treatment you will undergo to determine at what stage of your sentence it would be appropriate to release you to the community.

[31]   Mr Palenski please stand. On the charge of rape you are sentenced to 10 years’ imprisonment. On the other charges to which you have pleaded guilty you are

sentenced to five years’ imprisonment. The sentences are concurrent. The effective sentence is 10 years’ imprisonment.

[32]Stand down.

Venning J