R v Penwarden - [2017] NZHC 85

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 Defendant

Sentence:

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…

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 Penwarden

Details

AGLC: R v Penwarden [2017] NZHC 85
Case: [2017] NZHC 85
Decision Date: 2 February 2017

CaseChat Overview and Summary

Lyndon Troy Penwarden was sentenced in the High Court of New Zealand for multiple charges of serious sexual offending against two victims between 2006 and 2011. The charges included committing an indecent act with intent to insult or offend, sexual conduct with a child under 12, sexual conduct with a young person under 16, and sexual violation by unlawful sexual connection. The court was required to decide on the appropriate sentence, taking into account the aggravating and mitigating factors of the case, as well as the principles of sentencing.

The court determined the starting point for the sentence based on the nature and seriousness of the offending, the vulnerability of the victims, and the breach of trust. The court also considered the offender's prior convictions, which included sexual offending, and the offender's guilty pleas. The court decided to adopt the District Court Judge's suggested starting point of 12 years six months' imprisonment and applied a 20% discount for the guilty pleas. The court found no additional mitigating factors, such as genuine remorse, and therefore did not apply any further discount.

The court then considered the need for a minimum period of imprisonment to protect the community from the offender and deter similar offending. The court decided on a minimum non-parole period of four years six months' imprisonment, which equates to 45% of the overall sentence. The court found that preventive detention was not appropriate, as the offender had a supportive family network, was likely to be suitable for an extended supervision order, and the risk of reoffending would likely reduce as the offender aged. The court imposed a determinate sentence, with all sentences to be served concurrently with the offender's current sentence.

In conclusion, the High Court sentenced Lyndon Troy Penwarden to a total of 12 years six months' imprisonment, with a minimum non-parole period of four years six months' imprisonment. The sentences for each charge were as follows: 12 months for committing an indecent act with intent to insult or offend, six years for each of the four charges of sexual conduct with a child under 12, four years for each of the four charges of sexual conduct with a young person under 16, and 10 years for each of the two charges of sexual violation by unlawful sexual connection. The sentences were to be served concurrently with each other and with the sentences the offender was currently serving.

Orders