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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Palenski

Details

AGLC: R v Palenski [2020] NZHC 1621
Case: [2020] NZHC 1621
Decision Date: 8 July 2020

CaseChat Overview and Summary

In the High Court of New Zealand, the defendant, Troy George Palenski, was convicted of multiple charges including sexual violation by rape, unlawful sexual connection, sexual conduct with a child under 12, and possession of objectionable material. The court was tasked with sentencing Palenski on these charges, which involved the sexual abuse and exploitation of a young child. The court had to determine the appropriate sentence while considering the purposes and principles of the Sentencing Act 2002, including holding Palenski accountable for his actions, denouncing the conduct, and protecting the community.

The court acknowledged the gravity of Palenski's crimes, which involved the abuse of a four-year-old child over several incidents, the filming and photographing of these acts, and the possession of over 7,000 objectionable files. The victim, her family, and even Palenski's own son suffered significant emotional and psychological harm due to his actions. The court also considered the impact on the victim, her family, and the community, and the need for deterrence and protection of the public. After evaluating the totality of Palenski's offending, the court determined that a starting point of 15 years' imprisonment was appropriate. The court further considered mitigating factors such as Palenski's early guilty plea, remorse, prospects for rehabilitation, and mental health issues, ultimately granting a reduction of 28% to the starting point. This led to a final sentence of 10 years' imprisonment with no additional non-parole period imposed.

The court sentenced Palenski to 10 years' imprisonment for the charge of rape, and an additional five years' imprisonment for the other charges, to be served concurrently. The effective sentence was 10 years' imprisonment, and the court left it to the Parole Board to determine when Palenski would be suitable for release.

Orders