R v Penwarden
[2017] NZHC 85
•2 February 2017
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2015-087-1763 [2017] NZHC 85
THE QUEEN
v
LYNDON TROY PENWARDEN
Hearing: 2 February 2017 Appearances:
H Wrigley for Crown
C Tuck for DefendantSentence:
2 February 2017
SENTENCING NOTES OF TOOGOOD J
R v Penwarden [2017] NZHC 85 [2 February 2017]
[1] Lyndon Troy Penwarden: you appear for sentence, having pleaded guilty in the District Court at Tauranga, on 11 charges of serious sexual offending against two victims between 2006 and 2011, namely:
·one charge of committing an indecent act with intent to insult or offend;1
· four charges of sexual conduct with a child under 12;2
· four charges of sexual conduct with a young person under 16;3 and
· two charges of sexual violation by unlawful sexual connection.4
Procedural background
[2] Your pleas were entered after District Court Judge P G Mabey QC gave a sentence indication in which he suggested a starting point of 11 years six months’ imprisonment, adding an uplift of one year for the offending against the second victim to bring the overall indicated starting point to 12 years six months’
imprisonment.5 The Judge said he would allow a discount of 20 percent if you
pleaded guilty, bringing the total effective end sentence to one of 10 years’ imprisonment. He allowed the prospects of a relatively minor uplift on account of victim impact and a further discount for genuine remorse.
[3] Appropriately, in the absence of any report from a psychiatrist or psychologist, the Judge left open the possibility that a minimum period of imprisonment would be imposed.
[4] You are currently serving a term of six and a half years’ imprisonment
imposed in August 2013 for sexual offending committed against children between
1994 and 1997. Judge Mabey was alive to the possibility that, if you were convicted of the present charges, you might be considered eligible for a sentence of preventive
1 Crimes Act 1961, s 126; maximum sentence 2 years’ imprisonment.
2 Crimes Act, s 132(3); maximum sentence 10 years’ imprisonment.
3 Crimes Act, s 134(3); maximum sentence 7 years’ imprisonment.
4 Crimes Act, ss 128(1)(b) and 128B; maximum sentence 20 years’ imprisonment.
5 R v Penwarden DC Rotorua CRI-2015-087-1763, 15 July 2015.
detention.6 The Judge said, however, that evidence indicating progress in the rehabilitative programme while serving your current sentence might go some way to addressing the considerations under s 87(4) of the Sentencing Act 2002.
[5] After you pleaded guilty, Judge Mabey received and considered a pre- sentence report from a clinical psychologist. Because you had pleaded guilty to and were convicted of qualifying sexual offending, and because the opinion of the health assessor was that you present a high risk of sexual and violent re-offending, the Judge had reason to believe that a sentence of preventive detention may be appropriate. He declined jurisdiction and transferred you to this Court for sentence.7
[6] I confirm, Mr Penwarden, that I agree with both Mr Tuck and Mrs Wrigley that a sentence of preventive detention should not be imposed in this case. I have to say, however, it was a finely balanced decision on my part and in a moment I will explain briefly why I have reached that view.
[7] First, however, I need to describe the nature of your offending and the effect it has had on your victims.
Facts
[8] You formed a relationship with the mother of the two female victims in 2005. In February 2006 you rented a house with the victims’ mother, her two young sons and the victims. This provided the opportunity for the initial offending, but it continued after your relationship with their mother ended.
[9] Your offending against the younger victim covered a period of almost five years when she was aged between 8 and 13. It took place in remote locations when you were alone with her, as well as at the home when she was in a bathroom, bedroom, or caravan. The offending involved digital penetration of your finger into her genitalia; licking her genitalia; touching her breasts and other parts of her body; inducing her to masturbate you and masturbating in front of her. This type of
offending happened on numerous occasions over the relevant period.
6 Sentencing Act 2002, s 87(2).
7 Section 90.
[10] The offending against the older victim was more confined, covering a period of a little over two years when she was aged between 11 and 12. It occurred when you were alone with her at the home; when you were looking after her when she was unwell. It comprised two occasions when you touched her genital area and a third occasion when you pulled down her pants and commented on her pubic hair.
[11] I acknowledge the presence today of the two young women against whom you offended, and their mother; all of whom are victims of your offending.
Victim impact statements
[12] The victim impact statement of the younger victim, who is now aged 18, makes clear the emotional and mental strain the offending has exacted on her life. She describes feeling terrified and helpless, and as a result of the offending experiencing enduring feelings of anxiety and being emotionally fragile. She remains disgusted and feels that the offending makes it difficult for her to form relationships with serious new partners.
[13] The victim impact statement of the older victim, who is now 22 years old, describes the intense feelings of regret about being unable to protect her younger sister, as well as long-lasting trust issues the offending has instilled in her. As will have been obvious to you from the way she has conducted herself in court, she remains angry, confused and disgusted by what has happened to her. The feelings that she and her sister have endured and still endure are entirely understandable, and they will continue.
[14] The impact on the mother of the two victims should not be overlooked. She feels powerless and holds a deep sense of regret. The offending has made it difficult for her to trust men, which continues to exert an influence on her relationships. As the two young women have said, you deprived them of their ability to develop normally and, in effect, you stole their innocence and their childhood from them.
Personal circumstances
[15] You are 49 years of age. You have one adult son from an earlier relationship and, as I understand it, you have a supportive family circle. In the pre-sentence
reports you gave no indication of being abused sexually or violently as a child. You spoke about your upbringing in positive terms and although research indicates the family experienced some financial hardship, there was no suggestion that you suffered a turbulent childhood.
Prior convictions
[16] You have a number of previous convictions, the majority of which are minor drug charges, as well as property, dishonesty, traffic, justice-related, and violent offending. That part of your criminal history is largely immaterial to the current offending and how you should be treated.
[17] However, you are currently serving a six and a half year sentence for child sex offending that occurred between 1994 and 1997; your first custodial sentence. This offending also occurred against the female children of a woman with whom you were in a brief sexual relationship and with whom you were a boarder. The daughters were abused when they were between 11 and 14 years old and 9 and 12 years old respectively. Their mother was also assaulted by you with a weapon.
[18] Although that earlier offending occurred before the events for which you are now being sentenced, you were convicted and sentenced for that earlier offending after you committed these offences. It cannot be said, therefore, that you had received any warning from the courts about the serious consequences of this later offending, or that imprisonment has failed to have the salutary effect of deterring you. Nevertheless, that offending has similarities with these offences and that suggests a disturbing pattern of offending which is relevant to assessing your risk of reoffending in a like manner in the future.
Purposes and principles of sentencing
[19] In accordance with the relevant purposes of sentencing, you must be sentenced with regard to holding you accountable for harm done to the victims and community; to promoting in you acknowledgement of that harm and responsibility for it; to condemning and deterring this type of offending by you and others, and to
protecting the community from further offending of this nature, with the additional aim of rehabilitating and reintegrating you.8
[20] Turning to the principles of sentencing, I am required to take account of the gravity and seriousness of the offending; the desirability of maintaining consistency with appropriate sentencing levels; the effect of the offending on the victims, and the imposition of the least restrictive outcome appropriate in the circumstances.9
[21] The conventional approach requires me to determine first what finite sentence would be appropriate for your offending.
Submissions
Crown submissions
[22] For the Crown, Mrs Wrigley does not take serious issue with the approach taken by Judge Mabey in his sentence indication, except that she submits that the guilty plea discount of 20 percent suggested by the Judge is too generous given that the pleas were entered less than six weeks prior to the scheduled trial. The Crown submits that significant trial preparation had occurred by this stage, including a pre- trial hearing concerning propensity evidence which resulted in a ruling unfavourable to you.
[23] However, the Crown seeks a minimum period of imprisonment of at least
50 percent on the grounds that the offending is of such a serious nature, particularly given its duration, breaches of trust, and the vulnerability of victims, that a minimum term is necessary to denounce and deter such offending.
Offender’s submissions
[24] Mr Tuck challenges the Crown’s submissions in only two respects.
[25] First, he argues that the guilty plea discount of 20 percent suggested by Judge
Mabey is appropriate, and that a further discount for remorse is justified.
8 Sections 7(1) (a), (b), (f), (g) and (h).
9 Sections 8(a), (b), (e), (f) and (g).
[26] Second, he submits that no minimum period of imprisonment is necessary because of the likely length of the sentence, the availability of treatment, and the prospect of an extended supervision order applying severe post-release restrictions on you.
Starting point for offending
[27] Because, like counsel, I agree generally with Judge Mabey’s assessment of the starting point and his approach to uplifts and discounts, and because you pleaded guilty knowing the Judge’s views and the likely outcome, I do not need to explain my approach to imposing sentence as fully as might otherwise be required.
[28] The aggravating factors of your offending are:
(a) Vulnerability of the victims10 – the victims of your offending were particularly vulnerable because of their young age and the home environment in which you abused them. The older victim was abused when she was at home, in your care, because she was ill with chickenpox on at least one occasion. They had no means of escaping from you other than to complain to their mother and they have explained that, as so many similar victims explain, they were fearful of doing so and did not think they would be believed.
(b)Abuse of trust or authority11 – the offending always occurred when the victims were being looked after by you, in violation of the trust the victims (including the mother) placed in you in your role of de facto stepfather and authority figure.
(c) Scale of the offending12 – the offending occurred for an extended duration, over a prolonged period of five years against the first victim and two years for the second victim. The repetition and frequency of the offending as well as the variety of sexual acts involved makes it
more serious, as does the fact that there were two victims.
10 Section 9(1)(g).
11 Section 9(1)(f).
12 Section 9(1)(j).
(d)Planning and pre-meditation13 – while the probation officer reports you as saying the offending was opportunistic, the number of instances in which you contrived situations to be alone with the victims and your continuing to offend after the romantic relationship with their mother had ended indicate a significant degree of pre- meditation. There is evidence of grooming behaviour by way of money, phone credit, and takeaway food.
(e) Harm to the victims14 – the victim impact statements of both the victims indicate enduring mental and emotional trauma as a result of the offending. This lasting harm caused by the offending is a particularly aggravating feature.
[29] I take the sexual violation offending against the younger victim as the lead offending and address the totality of the offending against her before considering any uplift for the offending against her older sister. The number and seriousness of the aggravating factors places this offending squarely within band three of the guideline
judgment.15 I regard the indicated starting point of 11 and a half years for that
offending as being close enough to what I would have taken, if looking at the matter afresh, to consider that I should adopt it. In coming to that view, I have had regard to a number of other cases, including those cited by counsel.16
[30] I do not think a further uplift for harm to your victims is called for in this case, because recognition of what they have undoubtedly suffered and will continue to suffer is contained in the aggravating features I have mentioned.
[31] There are no mitigating factors in your offending.
Uplift for offending against other victim
[32] I agree with Mrs Wrigley that on a standalone basis the offending against the older victim could justify 2 years. This is consistent with the cases which have been
13 Section 9(1)(i).
14 Section 9(1)(d).
15 R v AM [2010] NZCA 114, [2010] 2 NZLR 750, at [113].
16 R v K [2009] NZCA 107; R v Wilson [2015] NZHC 1603; R v L [2014] NZHC 2471; R v PR [2016] NZHC 1192; R v Davidson HC Hamilton CRI-2006-019-5359 26 June 2009; R v Cudby [2012] NZHC 636.
identified, but on a totality basis it justifies an uplift of 12 months’ imprisonment as
indicated by Judge Mabey.17
[33] That takes the overall starting point to one of 12 years six months’
imprisonment.
Aggravating factors relating to the offender
[34] Prior convictions, particularly for offending of a similar type to the index offending, can be an aggravating feature justifying an uplift to reflect an increased need for deterrence. In the present case, however, I have put aside the non-sexual offending. If this offending had come to light before you were sentenced on the earlier sexual offending, the totality principle would have applied. Now you have already served three and a half years of that sentence. I note that this offending is more serious than the prior offending but the effect of the sentencing today means an effective uplift of three and a half years as part of the sentence you will serve for all of your sexual offending. In my view, no further uplift for that offending is called for in this case.
Mitigating factors relating to the offender
[35] You are entitled to a discount to a maximum of 25 percent for your guilty pleas,18 and that largely recognises the benefit to society of offenders pleading guilty at relatively early stages and, in cases of this kind, for the benefits to the victims of not having to give evidence at a trial.
[36] I agree with Mrs Wrigley that Judge Mabey’s allowance of 20 percent was generous and consider that 15 percent would have more appropriately reflected the benefit that the victims have of not having to come to trial. But because of the impact of your current sentence on the overall time you will spend in prison, I am
prepared to adopt the District Court Judge’s indication of 20 percent.
17 R v Wilson [2015] NZHC 1603.
18 Sentencing Act 2002, s 9(2)(b); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[37] I do not consider you have demonstrated such remorse as to justify any allowance beyond that which is inherent in the guilty plea discount.19 That results in a finite sentence of 10 years’ imprisonment.
[38] You have heard me raise with counsel the question of whether the sentences I am about to impose should be served concurrently with or cumulatively on your current sentence. I do not think it is appropriate to wait for you to complete your existing sentence before these sentences start to operate. Mrs Wrigley, for the Crown, agrees with that view and she adopts, as I do, the reasons explained by District Court Judge Mabey for regarding concurrent sentences as being
appropriate.20 I do note, however, a point that I had previously not noted, that some
of the current offending was committed while you were on bail for the earlier offending. That indicates that some degree of uplift might have been appropriate. Mr Tuck does not dispute the proposition that concurrent sentences should be imposed.
Minimum period of imprisonment
[39] I turn to consider the question of a minimum period of imprisonment. Despite Mr Tuck’s submissions to the contrary, I am satisfied that 10 years’ imprisonment with the prospect of parole after you have served one-third of that period is insufficient for the purposes of:21
(a) holding you accountable for the harm done to the victims and the community by your offending;
(b) denouncing your conduct;
(c) deterring you and others from committing the same or similar offences; and, particularly
(d) protecting the community from you.
19 Hessell v R, above n 13, at [63]-[64].
20 R v Penwarden, above n 5, at [49]-[52].
21 Sentencing Act 2002, s 84(2).
[40] Imposition of a minimum non-parole period is appropriate22 but the longer that period the longer your access to treatment will be delayed. Accordingly the minimum period I impose will be one of four years six months' imprisonment, or
45 percent.
Preventive detention
[41] Because this sentence was transferred to this Court on the basis that preventive detention might be available, I have considered carefully the opinions of the four health assessors (three psychologists and one psychiatrist) who have reported on you. Despite your eligibility for preventive detention because of your history and the moderate to high risk of sexual or violent reoffending, Mr Tuck and Mrs Wrigley agree that it is neither necessary nor desirable to impose such a sentence.
[42] In considering the factors I am required to take into account in coming to my view,23 I give weight to the fact that the assessment of your high risk of reoffending is based primarily on dynamic risk factors which can be ameliorated by the thorough rehabilitative programmes available in the prison environment.
[43] You are reported as having responded positively in a rehabilitative programme which was suspended pending the outcome of these charges, but you have not had the opportunity to complete a Corrections Sex Offender Treatment rehabilitative programme. Although the risk of reoffending you pose led me first to think that preventive detention might be necessary, I do not consider it appropriate to sentence you to preventive detention without giving that programme an opportunity to work.
[44] I give weight also to the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society;24 I note that the health assessors’ reports support that view. You have a family support network in place and
I consider it likely that the Chief Executive of Corrections will regard you as a
22 Section 86(2).
23 Section 87(4).
24 Section 87(4)(e).
suitable candidate for an extended supervision order.25 Such an order could be applied to prevent you from entering an environment where you would be living with young girls.
[45] I am mindful also that you are nearly 50 years old and that the risk of your re- offending will likely reduce as you age.
[46] For all of those reasons, I am satisfied that, although it was right that Judge Mabey QC transferred you to this Court for sentence, preventive detention is not appropriate and that a determinate sentence, of such length as I have indicated, is sufficient to protect the community from you.
[47] Will you please stand, Mr Penwarden.
Orders
[48] I sentence you as follows:
(a) On the charge of committing an indecent act with intent to insult or
offend, I sentence you to 12 months’ imprisonment.
(b) On each of the four charges of sexual conduct with a child under 12, I
sentence you to six years’ imprisonment
(c) On each of the four charges of sexual conduct with a young person under 16, I sentence you to four years’ imprisonment.
(d)On each of the two charges of sexual violation by unlawful sexual connection, I sentence you to 10 years’ imprisonment and order that you shall serve a minimum period of four years six months’ imprisonment on each of those charges.
[49] All of these sentences shall be served concurrently with each other and with the sentences you are currently serving.
25 Parole Act 2002, ss 107A and 107F.
[50] I direct that the summary of facts; the four health assessors’ reports (including the report from Mr Schaapveld); the provision of advice to the Court; and these sentencing notes shall be provided to the Department of Corrections and to the Parole Board.
[51] Stand down.
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Toogood J
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