R v Henry [2016] NZDC 11184 (21 June 2016)

Last Updated: 1 April 2017

EDITORIAL NOTE: SOME NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT NEW PLYMOUTH

CRI-2014-043-001843 [2016] NZDC 11184

THE QUEEN

v

_{DION CRAIG HENRY}

Hearing:	21 June 2016
	S J Simpkin for the Crown L B Cordwell for the Defendant
Judgment:	21 June 2016

_{NOTES OF JUDGE G P BARKLE ON SENTENCING}

[1] Mr Henry, as you know you are here for sentence following being found guilty by a jury, of five charges. Those were that in early May of 2005, you touched the complainant Sammie Flower, then aged under 12 years, indecently by touching her vaginal area with your fingers. Second, that you had unlawful sexual connection with her by introducing your fingers into her vagina. Three, you indecently assaulted her by touching her breasts. Fourthly, you induced her to do an indecent act upon you namely masturbating your penis and, fifthly, that you sexually violated Ms Flower by connection between her mouth and your penis.

[2] A summary of the offending on which this Court sentences you is that at the time of the five incidents that occurred in early May of 2005, Ms Flower was aged 11 and you were aged 33. [Details deleted] In planning your conduct you provided Ms Flower’s brother with money to go to a local dairy for some sweets.

_{He, having left the house, you told Ms Flower to go upstairs to your bedroom and}

R v DION CRAIG HENRY [2016] NZDC 11184 [21 June 2016]

undress. Soon after you followed. You had Ms Flower lie on the bed then spread her legs and after fondling her vaginal area you then inserted your fingers in her vagina.

[3] During her evidence she described that during that event she clenched onto her shirt, her eyes were closed, she was hoping for it to stop.

[4] Having satisfied yourself, you left and went back downstairs. When Sammie returned to the lounge area, you were sexually aroused with an erect penis. You had Ms Flower masturbate your penis, during which time you also fondled her breasts. I also note her evidence that you kissed her on the lips during this event. Finally, you placed your penis in her mouth and ejaculated. Ms Flower’s evidence was that you pushed her hair back out of her face, pushed her face down onto your penis and forced her to swallow your semen. An event that she described as absolutely disgusting and vile.

[5] The jury, in finding you guilty, rejected your evidence that you came upon Ms Flower and her older brother involved in a sexual act and that you were not able to bring that to the attention of the authorities because you were bribed by her mother that she would force Ms Flower to make a false complaint against you.

[6] In her victim impact statement, Ms Flower preferred not to re-live the experience of what you did to her. However, what she did comment on was the experience of giving evidence in Court and she termed that as horrible and feeling like torture having to re-live the horrible time that she experienced with you. She was scared about the whole situation of giving evidence in Court in front of strangers and just having to repeat everything in great depth.

[7] The pre-sentence report advises the Court that you continue to deny the offending and that has been confirmed by Mr Cordwell this morning.

[8] The report states that your risk of re-offending is assessed as moderate but your potential to cause harm to others is assessed as high.

[9] On a more positive front, there is the gap in your general offending of some six years and the stability of your relationship with your partner are referred to, and also that you have been in employment for some three years prior to now.

[10] Ms Simpkin and Mr Cordwell have both provided assistance to the Court by way of oral and written submissions. They agree that your offending falls in band 2 of the Court of Appeal guideline judgement of R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750. That provides for a start point of your sentence of between seven and 13 years’ imprisonment.

[11] Where the Crown and defence part company is on the number of aggravating factors and degree of seriousness of each of those. The Crown end point for your sentence is in the range of 10 years, six months, to 11 years. Ms Simpkin also submits that a minimum period of non parole imprisonment should be imposed of half to two thirds of that sentence.

[12] In contrast, Mr Cordwell submits a start point of seven to eight years imprisonment. Acknowledging a slight uplift for prior offending he proposes an end point between six and eight years and that a non-parole period of imprisonment is unnecessary.

[13] In imposing sentence, I am required to have regard to the purposes and principles of the Sentencing Act 2002. In your case the following purposes are particularly relevant. The interest of the victim, Ms Flower, denunciation of your conduct, deterrence of you and others generally, protection of the community, your rehabilitation and the least-restrictive outcome appropriate in the circumstances.

[14] In the guideline judgement of R v AM, the Court of Appeal set out a non-exhaustive list of culpability factors, many of which are consistent with aggravating factors set out in s 9 Sentencing Act.

[15] In this case Mr Henry, I identify the following culpability and aggravating factors in your offending:

1) Planning and premeditation. This was present to the extent that you engineered a situation by providing Ms Flower’s younger brother with money to allow you to be alone with her and then you took advantage of that situation having occurred.

2) The vulnerability of the victim. Sammie was 11, you were 33. She was vulnerable because of that age alone. Furthermore you were well aware of her total lack of parental support and the highly dysfunctional family situation in which she lived, meaning she was particularly vulnerable coupled with her young age. In my view you chose to prey on her vulnerability.

3) Harm to your victim is inherent in the offending. As a young girl of

11, no doubt you caused her psychological harm apart from the harm of the actual event of itself.

4) Breach of trust. [Details deleted].

5) Scale of the offending. Here there was a series of incidents ranging in seriousness from indecencies upon Sammie, inducing an indecency to sexual violation by digital penetration and holding her head on your penis while you ejaculated. In the case the Crown has referred to of Ringrose v R [2011] NZCA 634, the Court of Appeal noted that an act of oral sex is elevated in seriousness by the fact of ejaculation. The five separate incidents were part of two closely-connected events in time and happened over a relatively short time span of approximately

30 minutes.

[16] In deciding on a start point of your sentence Mr Henry, I regard the aggravating factor of Ms Flower’s vulnerability to be present to a high degree. The scale of your offending was in relative terms with other cases of a low to moderate level and the aggravating factors of a breach in trust and premeditation were present to a limited extent.

[17] I am also required to have regard to s 9(A)(2) Sentencing Act because your offending was against a child under the age of 14 years and the following factors are relevant from that section: Sammie’s defencelessness, the harm that resulted from your offending and the breach of trust that I have referred to.

[18] Taking all of those matters into account, my start point for your sentence is one of nine years’ imprisonment. There are no mitigating factors relevant to your offending.

[19] I now turn to adjustment for personal factors.

[20] The Sentencing Act requires the Court to consider your previous convictions. You have 57; many are driving and drug related. Of most relevance are a conviction in 1999 for sexual intercourse with a female between 12 and 16, three convictions for male assaults female and two convictions of doing an indecent act with a girl under 12.

[21] I note that these last two post-dated this offending for which you are being sentenced however, in R v Hall [2010] NZCA 72 the Court of Appeal, at paragraphs 38 and 39 said that the principle is that a sentencing Judge may take into account all matters proved to be germane to the case, assessed at the time of sentence.

[22] I also remind myself that the Court of Appeal has also said that it is important that uplifts not be imposed as a matter of course but rather as a considered response to specific aspects of an offender’s previous criminal history.

[23] Accordingly, in my view the start point should be increased by nine months for your previous offending.

[24] In terms of mitigating matters, Mr Henry, the only one which I believe the Court can properly weigh in your favour is the positive impact of your relationship, which has resulted, it seems, in a good period without offending – that being since 2010.

[25] Your partner has advised that she will remain with you. She, together with members of your family are present today.

[26] I therefore propose that a credit of three months to the sentence point I

previously arrived at will be provided.

[27] That then means an end point sentence of nine years, six months.

[28] I will deal first with how periods of imprisonment are imposed across the five charges before considering the question of a minimum period of imprisonment.

[29] The lead offence to which you will be sentenced to nine years, six months imprisonment is sexual violation by unlawful sexual connection between Ms Flower’s mouth and your penis. The charge of sexual violation by digital penetration of Ms Flower’s vagina will be a sentence of five years’ imprisonment. On each of the three charges of indecency with a girl under 12, there will be sentences of three years’ imprisonment.

[30] All of those sentences will be served concurrently.

[31] The fines that you currently have of $749.86 will be remitted within that period of imprisonment.

[32] The Crown submits also that a period of non-parole imprisonment should be imposed. Mr Cordwell, on your behalf, submits that is not necessary and effectively says that the matter of your release should be left to the parole board. The discretion is available to the Court pursuant to s 86(1) Sentencing Act to impose a minimum period of imprisonment.

[33] In this case you would be, if one was not imposed, eligible for parole after a period of three years two months.

[34] I note in cases of sexual offending against children, the imposition of a minimum period of imprisonment is relatively common. I am required to have regard to the factors in s 86(2) when considering this matter.

[35] The pre-sentence report states that your risk of re-offending is assessed as moderate but your potential to cause harm to others is assessed as high. I balance that with the length of time you have gone without offending and apparent stability of your current relationship.

[36] There is also still, however, a requirement to give consideration to the need to protect the community from you, particularly having regard to previous like offending. Coupled with that is a need to hold you adequately accountable, denounce your offending and also deter yourself and others from acting in the manner that you did.

[37] When I consider each of those matters I am satisfied a minimum period of non-parole imprisonment should be imposed of 50 percent of the lead sentence, or four years nine months imprisonment.

G P Barkle

District Court Judge