Police v Beardsmore DC Palmerston North CRI-2011-054-1505 [2011] NZDC 1283 (10 August 2011)

Last Updated: 3 October 2016

IN THE DISTRICT COURT AT PALMERSTON NORTH

_{CRI-2011-054-001505}

NEW ZEALAND POLICE

Informant

v

DENNIS ALEXANDER BEARDSMORE

Defendant

Hearing: 10 August 2011

Appearances: M G Sinclair for the Informant

F D Steedman for the Defendant

Judgment: 10 August 2011

_{NOTES OF JUDGE G M LYNCH ON SENTENCING}

[1] Dennis Alexander Beardsmore is for sentence on two charges of indecently assaulting, J, a girl under the age of 12 and three charges of sexual violation of the same girl, J.

[2] Two of the sexual violation charges are by Mr Beardsmore performing oral sex on J and the third having J perform oral sex on him.

[3] Mr Beardsmore, you are J’s grandfather. At the time of each offence J was

either visiting or living with you.

[4] The dates of the offending span from April 2002 to December 2009. J was between the ages of about five and 12 years, eight months old. J turned 12 on

_{27 April 2009, (clearly her date of birth is to be suppressed) and that explains some}

POLICE V BEARDSMORE DC PMN CRI-2011-054-001505 10 August 2011

variation in the charges and dates. However, I observe from Mr Steedman’s submissions, Mr Steedman having engaged fully with the disclosure, that the offending appears to be in two blocks.

[5] The first was when J was between the ages of four and five and seven years old during which time J saw a great deal of you.

[6] J then moved away from Feilding for a period, moving over to the Hawke’s Bay for about three years, so when J was between seven and 10 years old. The second period is, as Mr Steedman described it, certainly when J was 11. It is common ground, she lived on and off with you and your wife for about 18 months so, that is between mid 2008 and the end of 2009.

[7] Late December 2009 J and her dad moved to Timaru. It was in Timaru that J

was interviewed.

[8] So hopefully that explains a little better the periods of offending and I am grateful for Mr Steedman explaining it to me.

[9] The first charge of doing an indecent act on J is representative. The first incident that is covered by this charge was when J was around five and in the garage with you. You put your hand up her skirt and fondled her genital area. The summary is silent as to whether it was skin to skin contact. Accordingly, I must proceed on the basis that the touching of J’s genital area on that occasion was over her underwear.

[10] In 2004 when J was seven years old you asked J to help feed the dogs. While she was doing that you put your hand inside her shirt and rubbed her chest. The same day when inside watching TV you put your hands down the front of her pants and touched her genital area. This was skin to skin contact and you moved your hand backwards and forwards. You told J not to tell anyone.

[11] When J was about 11 she was staying with you and her nana for longer periods of time as I have observed. The two of you in that time became closer. At

one point, rather disturbingly, you said to her that you would like to have sex with her when she was older.

[12] Charge two is a representative charge of sexual violation. I need to observe from the outset in relation to this charge that what the summary of facts stated was that J, encouraged by you, would often sit on your lap. On some occasions the two of you would be dressed. On some occasions you were both not dressed. On those occasions your penis would be touching J’s genitalia, but there was no penetration.

[13] Mr Steedman has taken exception to that passage in the summary of facts and it rather appears, with some force. The only evidence that supports that type of allegation appears in your own statement to the police. I have been provided with pages 28 and 29 of your recorded interview. So that I set out the context clearly I will record the relevant questions and answers:

A. “There is one time that, ah, she, um, she was standing there and my penis was out, and she put herself on, on to my penis, but it went straight between her legs, right through, never touched, you know, she, you know, what it’s like...”

Q. “And she was naked?”

A. “No, she had, she wasn’t naked.”

Q. “Did she have any knickers on or?”

A. “I can’t remember if she did or not, that’s the only time my penis ever went near her that way.”

[14] Accordingly, it is on that basis which I am invited to sentence

Mr Beardsmore in relation to this charge and will do so.

[15] The summary goes on to state that, in relation to this representative charge, the relationship between the two of you developed from fondling to what is described as minor masturbation and eventually oral sex. On several occasions

between mid 2008, J then 11 and December 2009, J then 12, you performed oral sex acts on J. While doing so, it is said that you would use your tongue to “flick and stimulate” J’s clitoris.

[16] Charge three is a representative charge of doing an indecent act. When J was

11 to 12 years old you were in the shed with her. You took J’s hand and put it down your pants, trying to get J to put her hand on your penis. J pulled her hand away and kicked you. In early 2009, J being 11 going on 12, there was an occasion where you had undone your belt and pants, grabbed hold of J’s hand and put her hand on your penis.

[17] On 26 December 2009 while travelling back from the Speedway in your car,

you reached over and put your hand inside J’s shirt and touched her breast.

[18] Charges four and five are single charges of sexual violation when J had turned 12. Later in 2009 when J had turned 12 you performed oral sex on her. You also encouraged J to “kiss your penis” which she did.

[19] Neither you nor J could, because of the frequency of the acts, remember every incident. What is accepted is that this type of behaviour was a regular occurrence during J’s visits to your address over the seven to eight years. When I speak of the regular occurrences, that is in relation to the indecent acts.

[20] When you spoke to the police you admitted that you had initiated the sexual acts and encouraged the relationship with J. You admitted that what occurred were not isolated incidents, again this is in relation to the indecent acts, and happened on a regular basis over that entire period. You do not have any previous convictions.

[21] The victim impact statement for J made for sad reading. As a result of this J has not been able to have any contact with her nana. Things had started falling apart for J but now this has all come out J is much happier at school and starting to make good progress. J, like other victims in her position felt that what had happened was her fault. That is an awful burden for someone so young, when it was not for a moment any of her fault.

[22] As an illustration of how something like this affects the whole family J has been estranged from her father, your son. While he has told J is not siding with you, the victim impact statement says that he is not talking to J or having anything to do with her. I rather hope that that position has changed.

[23] J now has trust issues with males. I must say, it was a well written and thoughtful victim impact statement written by J. Not, I emphasise, filled with venom and that could have been expected. What I read was rather illustrative of, in my assessment, J’s maturity.

[24] The pre-sentence report was troubling. While you did not challenge the facts, you shifted the blame on to J. That is reprehensible and illustrative that you have no remorse. The report writer observed that you had no thought of the consequences for J, your granddaughter, or what impact it might have had on her.

[25] You said that you thought you were teaching her about sex. You seemed, from the report, to be more concerned about your own plight and what you will lose when sentenced to imprisonment.

[26] You are seen as having a high risk of re-offending should the circumstances allow it, which makes it imperative that you receive specialist treatment. However, that will only happen once you are prepared to take responsibility for your offending.

[27] Both the Crown and Mr Steedman on your behalf filed written submissions. I am grateful for the care and attention counsel have taken. These types of sentencing matters are never easy.

[28] Following a review of R v AM [2010] NZCA 114; [2010] 2 NZLR 750, Ms Sinclair submitted that the offending was in USC band 3, requiring a starting point between nine and 18 years. Relying on R v AM and R v K (CA 425/98, 3 May 1999) which was referred to in AM, the Crown submitted that given the culpability factors identified, a starting point between 11 to 12 years was appropriate.

[29] The Crown also invited a minimum period of imprisonment. I will return to that issue.

[30] Mr Steedman, in full and helpful submissions on your behalf, emphasised:

1. Your honesty with the police which has resulted in charges for offending not disclosed by J.

2. The sexual violation charge where J “kissed” your penis is not in the category of penile penetration of the mouth and dealt with on the same basis as rape under AM.

3. The sexual violation where you have performed oral sex on J must have occurred only on a few occasions. Perhaps three to four times over a 20 month period, April 2008 to December 2009, relying on your admissions to the police. J did not mention these events to the police in their interviews and Mr Steedman was of the view that perhaps looking back on it, J was more focussed on the indecent acts on her when she was much younger. Mr Steedman has addressed again today the number of incidents that fall to be considered under the sexual violation charges and his submission was that there is one instance of oral genital contact on you and three to four instances of oral genital contact by you on J. It is not a situation of six occasions which Ms Sinclair had spoken about. I will sentence on the basis submitted by Mr Steedman.

4. Following the review of the AM culpability factors, Mr Steedman was of the view that your offending was towards the top of USC band 2 or at the very bottom of band 3 and that a starting point in the region of eight to nine years was appropriate.

5. Credit for remorse was available. The statements made to the report writer were not the sort of things that you told him and in fact, you told Mr Steedman that you did feel bad about the things that you had

done, that you were very sorry. Mr Steedman said at one point you cried when discussing this. Mr Steedman said that this was in your fourth or fifth meeting, that you are a man who does not wear his heart on his sleeve, you are a solitary man and that I ought to exercise care when the report writer addresses remorse on the basis of a single meeting with you, notwithstanding that it is an interview of some length.

6. You do not accept you are at a high risk of re-offending. To the contrary, says Mr Steedman, you have been “frightened back into sensibility by this prosecution” and you do not want anything to do with anything that is even remotely sexual.

7. As observed in Hall’s Principles of Sentencing, the Court should not overlook that every year of a custodial sentence for an elderly offender represents a substantial proportion of the period of life left to the offender.

[31] As counsel have identified, R v AM is the guideline decision providing sentencing bands for rape and for unlawful sexual connection. The Court provided a list of culpability factors which were not intended to be exhaustive.

[32] As counsel have, I need to address the relevant factors identified by the Court of Appeal:

1. Planning and premeditation. In my assessment this was not the opportunistic offending contended for on your behalf by Mr Steedman. There was clearly a degree of grooming. You might not have called it that if you had stopped to think about what you were doing to this girl, but plainly the offending became more serious as time went on. It may have commenced opportunistically, it has to start at some point, however, in my assessment logically you must have created some of the opportunities to offend against her.

2. Vulnerability of the victim. By her age and your relationship to her, this was a vulnerable girl. J was in your care. You offended against her when she was as young as four or five and committed the sexual violation when she was 11 and 12 years old.

3. Harm to the victim. I have already referred to the victim impact statement. Clearly the victim has suffered harm, this is offending that will impact on her for some time and particularly now at a time when she is emotionally and intellectually maturing.

4. Scale of offending. I accept Mr Steedman’s observation that it appears that the Court is dealing with a relatively small number of sexual violation offences. It is not for me to guess what the true position might be. I can and will only sentence on what is in front of me, which is something like the four to five acts of sexual violation as I have referred to earlier. The Crown is right though when it says that there were a significant number of events. The point Mr Steedman was making was that those were acts of indecency, rather than violation. However, I do not overlook that the offending was over a longer period of time, involved an element of grooming and increased in range and type.

5. Breach of trust. There is no argument that this was a serious breach of trust. Mr Steedman described it as “a stupendous breach of trust,” you “driving a truck through the whole concept of trust itself.” You were J’s grandfather. J from time to time was in your care, you had an integral role in J’s family life.

6. Degree of violation. I have already observed that there was no penile penetration of J’s mouth. That said, being obliged to kiss your penis is not only grossly demeaning to this young girl, but serious offending of its kind, given J’s age and her vulnerability, even absent the actual penetration of her mouth. That is not to overlook you performing oral sex on J. From the facts it was clearly serious offending of its kind.

[33] Before I move to the band the offending is in, I remind myself of the purposes of sentencing and in particular the need to hold you accountable and the need to deter and denounce this type of offending against young girls and where the offender is in a position of trust and authority.

[34] I remind myself of the principles of sentencing, in particular the need for consistency in sentencing in similar matters and R v AM provides the guidance that is needed.

[35] The gravity of the offending has been discussed where I dealt with the culpability factors in AM, as have some of the other principles in s 8. However, the gravity is plainly in the serious category.

[36] What is the appropriate band then? Compared to other cases the degree of violation itself is not significant. However, there are other factors to take into account as I have discussed. Planning and premeditation, vulnerability, harm, the scale of the offending and the significant breach of trust. In my assessment there has been a degree of grooming by you and your remarks in the pre-sentence report lend weight to that where you say there was consent and you believed you were teaching J about sex.

[37] However, it has to be said that the strongest factors are J’s vulnerability and the breach of trust, against the backdrop of this offending in one way or another occurring over a significant period of time. In that way, the indecent act charges need to be brought into account and I guard against double counting them.

[38] I did not find R v K particularly helpful. It predates AM and on more than

80 percent of the 50 occasions over a two year period, K admitted touching or penetrating the complainant’s genitalia with his fingers. That is an aggravating factor not present to any great degree here.

[39] As Baldwin v R [2010] NZCA 472 illustrates, the number of aggravating factors does not make the band or starting point clear cut. Rather, what is important is weighing the identified culpability factors.

[40] In my assessment, this is offending at the top of band 2. In arriving at that assessment I have particularly taken into account:

1. The degree of violation where J performed oral sex on you was low.

2. That cannot be said in relation to the oral sex you performed on her.

3. It is accepted that the acts of oral sex were four to five times, when J

was 11 to 12 years old.

4. The backdrop to the serious offending was significant indecent assault offending from the age of five on her by her granddad, a person she was entitled to trust, who she deserved to trust, but was miserably and seriously let down.

[41] Accordingly, on the sexual violation charges, I adopt a start point of nine years and nine months. I do not make any deduction for remorse. In my assessment there is none. To the contrary, you sought to shift the blame when you spoke with the report writer. That is not the remark of someone with remorse. You have not taken any steps to be counselled. You were upset. Regretfully, it is for the plight you are in, not remorse for the harm that you have caused your granddaughter.

[42] I deduct two years and six months for your guilty pleas, arriving at an end sentence of seven years and three months.

[43] Mr Beardsmore, could you stand up please. Mr Beardsmore, on the sexual violation charges you are convicted and sentenced to seven years and three months imprisonment. On the two indecent act charges, on each of those charges you are convicted and sentenced to two years and eight months imprisonment from a start point of three years and six months. Those sentences are to be served concurrently. The total sentence is one of seven years and three months imprisonment.

[44] The Crown invites the imposition of a minimum period of imprisonment. I do not impose a minimum period of imprisonment. I factor in as best I can the plain fact that at your age this sentence of imprisonment will be difficult. However, you

have no significant health impairment that could, on a principled basis, be used to discount the actual sentence.

[45] You of course do not have any previous sexual offending. However, that would not prevent a minimum period of imprisonment being imposed. Having reflected on the matter, in my assessment the New Zealand Parole Board is in the best position to judge when it is appropriate for you to be released. You will need psychological help. The board will consider that and also what steps you have taken while serving your sentence.

[46] However, the purposes of sentencing do not require, in my judgment, a minimum period of imprisonment.

[47] Finally, Mr Beardsmore, you have, up until today, had an order for the interim suppression of your name. Ms Sinclair on behalf of the Crown tells me that she has consulted with J and her mother and the view the family has taken is that they do not seek suppression of your name. It follows then that I am required to suppress any detail which might identify J following the publication of your name.

[48] Accordingly, I direct that there is to be no identification of J in anyway whatsoever, which is to include her age and the places where she has lived.

[49] I record, for the sake of completeness, that Mr Steedman acknowledged that he was not able to point to any factors personal to you which would support a final order for the suppression of your name. Mr Steedman responsibly urged caution, and here he was referring to the media in terms of its reporting and the risk of the inadvertent outing of J.

G M Lynch

District Court Judge