R v Pennington [2017] NZDC 11030 (26 May 2017)

Last Updated: 19 September 2017

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

IN THE DISTRICT COURT AT MANUKAU

CRI-2016-092-011918 [2017] NZDC 11030

THE QUEEN

v

_{[DONALD PENNINGTON]}

Hearing:	26 May 2017
Appearances:	M Regan for the Crown P Borich for the Defendant
Judgment:	26 May 2017

_{NOTES OF JUDGE J BERGSENG ON SENTENCING}

[1] [Donald Pennington] you have pleaded guilty to three charges of sexual violation by unlawful sexual connection, one of those as a representative charge, and two charges of indecency with a girl under the age of 12 and one of sexual conduct with a child. This was offending that took place between the period 2000 to 2003 and then July and August 2005.

[2] There are two victims to your offending. They were aged eight to 11 and four and five respectively at the time of the offending. One of those victims was your granddaughter. The other was a child of close family friends. At the time you were aged between 67 and 71.

[3] The summary of facts is not in dispute. In respect of the child of family friends, she made numerous visits to your home. On occasions while she was at

_{your home you would be left alone with her. On one occasion you put your penis}

R v [DONALD PENNINGTON} [2017] NZDC 11030 [26 May 2017]

into her mouth. You forced her to suck it and you said to her, “Keep going, darling, keep going.” You also removed her pants and licked her vagina. You said to her that it was “your secret”. The number of occasions that this occurred on is unclear.

[4] In respect of your granddaughter she spent, it would appear, a large amount of time at your home. On occasions, when you got the opportunity, when you were alone with her, you would have her sit on your lap. She would be facing away from you. You would put your hand down her underwear to touch her vagina and you would get her to touch your penis.

[5] The impact of this offending on these two children cannot be underestimated. You have heard Mr Regan from the Crown read your granddaughter’s victim impact statement. The second victim impact statement is equally difficult to read. It shows the utter devastation that your offending has caused for both of these young women. Although it was offending that took place in the early 2000s it is with them on a daily basis.

[6] What they have described is not unusual but it is a graphic example of the impact that this type of offending has on young children. It robs them of their innocence. It impacts pretty much everything they do. It impacts on the relationships that they have themselves, also, significantly, the relationships that they then have with their own family members. In respect of your granddaughter, she has said that she resents her family. She feels that they failed to protect her.

[7] At the end of the day, Mr [Pennington], you have to take responsibility for this offending and for the impact that it has had on your family. You have no convictions that are relevant. You have an assault conviction going back to 1969 and two charges of careless driving.

[8] There is a pre-sentence report. That makes reference to offending factors being your self-entitled attitudes and sexual arousal. It notes that you appear to be remorseful, that you were generally co-operative and that you have accepted responsibility for what occurred. You blame it on your own stupidity but you are unable to otherwise explain the reasoning behind your offending.

[9] Regarding the consequences of the offending, you have clearly acknowledged that you only thought about that after you had offended. You have ongoing support from your family but clearly that has not been easy and there has been an impact on the relationship with your wife, which is what would be expected. The report seeks a remand so that home detention can be considered. I have indicated to your counsel that home detention is not a consideration that will be available.

[10] Submissions have been made by the Crown and your counsel. The Crown, taking the sexual violation charges as the lead offending, submit that the aggravating features are that this involved offending which was planned and premeditated, that you had a vulnerable victim aged four to five years at the time, the harm to her has been significant, and it involved a breach of trust. The starting point submitted by the Crown should be between nine to 10 years on those charges.

[11] In respect of the second victim they also note it involved planning and premeditation, again, a vulnerable victim and a significant breach of trust, given that she was your granddaughter and accordingly they submit an uplift of one to two years’ imprisonment. The Crown have acknowledged the medical conditions from which you suffer. They accept that credit can be given for your early plea of guilty.

[12] On your behalf Mr Borich submits that the starting point should be somewhat lower than that submitted by the Crown, that it should be in the range of seven to eight years with an uplift of 12 months. His focus is in the main on the mitigating factors that are available. He submits that you ceased the offending of your own volition, it did not involve any outside intervention, that your age and medical difficulties should result in at least a 30 percent reduction in the sentence, that you are remorseful, that you are entitled to credit of 25 percent for your plea of guilty and that credit should also be given for your previous good character.

[13] The purposes of sentencing that are relevant include holding you accountable for what you have done. I need to take into account the interests of the victims of your offending. Denunciation and deterrence are important factors. Regarding the principles of sentencing, the focus there is in respect of your particular circumstances

would mean that an otherwise appropriate sentence could be seen as being disproportionately severe.

[14] The starting point by reference to charges 1, 2 and 3, the charges of sexual violation by unlawful sexual connection, do involve offending against a vulnerable victim. She was four to five years of age. She was not able to protect herself from your behaviour. It involved a significant breach of trust. She was the child of close family friends. It was premeditated offending and the harm to the victim has been significant. The offending involved one occasion when you put your penis into her mouth. As has been indicated in the summary of facts, the number of actual occasions of offending cannot be specifically identified.

[15] By reference to the Court of Appeal decision in R v AM,1 band 2 has been identified by both the Crown and your counsel as the appropriate sentencing band. That is a range between 7 and 13 years. When I consider the factors identified as aggravating the starting point I adopt is one of nine years’ imprisonment. There needs to be an uplift to reflect the offending against your granddaughter. The uplift I apply is 12 months. That gets me to the end starting point of 10 years’ imprisonment.

[16] Your age, now [age deleted], and your medical conditions set out in the doctor’s letter are relevant considerations. Dr Chang has identified that you have [medical details deleted] The doctor notes that your life expectancy is limited, that you are currently undergoing 24 hour care which is provided for by your family.

[17] Mr Borich has referred me to the Court of Appeal decision of R v Luce2. That decision recognises what has been long established, that in appropriate cases a reduction in sentence is able to be considered due to factors which include ill health and life expectancy. At paragraph 26 of the Luce decision what the Court of appeal said is:

Mr Luce is in such ill health and his life expectancy is now so palpably short that the usual purposes and principles of sentence have become increasingly notional, and the difficulties inherent in a sentence of imprisonment so

1 _{R v AM [2010] NZCA 114, [2010] 2 NZLR 750}

2 R v Luce [2007] NZCA 476

palpable that, despite the statutory remedies, that should be recognised in the ultimate sentence.

[18] In that case the sentence was reduced by just short of 30 percent. Of course it remains open to the Parole Board to consider your situation once you get to the point where parole is available and also the Chief Executive of Corrections who is able to release a prisoner for compassionate or humane treatment. Those are matters that lie with the Chief Executive and/or the Parole Board.

[19] From the starting point I reduce the sentence by 30 percent. That is a three year reduction. I am also going to allow a further reduction of six months for your previous good character. That gets me to a term of imprisonment of 78 months before I consider your guilty plea. It came at the earliest possible moment and there will be a further reduction of 25 percent or some 20 months and that gets me to an end sentence of four years and 10 months’ imprisonment.

[20] I am not further reducing the sentence on account of the submission made by Mr Borich, that there is remorse shown by you which should be recognised. In my view the remorse that is shown is not of the type that calls for a further specific reduction and accordingly the end sentence is one of four years and 10 months on the sexual violation charges and 12 months on the indecency charges. Those sentences are concurrent.

[21] You will also be subject to registration under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 and notice will be provided to you of the effect of that registration.

[22] Finally I am deferring the commencement of your sentencing through to tomorrow morning at 10.00 am. That is to enable you to present yourself at Mt Eden Prison to commence your sentence. I grant the request of your counsel because I recognise the practical difficulties that would otherwise be faced by Corrections today in getting you into the holding cells, then to the prison van. You do not pose a risk, given your age and medical condition. It is for those reasons that I have granted that deferment. Mr Borich, just in terms of the practicality, his bail will continue through till 10.00 am tomorrow morning on the same conditions.

J Bergseng

District Court Judge