R v Pringle [2017] NZDC 20048 (6 September 2017)

Last Updated: 6 April 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

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 DISTRICT COURT AT AUCKLAND

CRI-2016-004-006311

[2017] NZDC 20048 THREE STRIKES WARNING

THE QUEEN

v

[JACK PRINGLE]

Hearing:	6 September 2017
Appearances:	A Linterman for the Crown P Stokes for the Defendant
Judgment:	6 September 2017

NOTES OF JUDGE D J SHARP ON SENTENCING

[1] Mr [Pringle], you are for sentence having been found guilty after trial to two charges of sexual violation by unlawful sexual connection. The maximum penalties for each of these is 20 years’ imprisonment. The outcome of the trial was that you were found guilty of offending against your cousin.

[2] On [date deleted] you were babysitting your younger cousin, who was at that stage nine years of age. You were aged 18 years of age. She fell asleep in the lounge and her [siblings] went to bed. You woke her up, told her to get on her hands and

R v [JACK PRINGLE] [2017] NZDC 20048 [6 September 2017]

knees and put your penis into her anus. Following this you told her to go into the kitchen where you did this again. As I said at the stage this occurred you were 18 years of age.

[3] The victim of the offending disclosed this offending in [date deleted] when she was 14, which meant that there was a period of time in which she had to go through the difficulties that are there for people that disclose offending such as this against family members and the incidents itself were extremely traumatic to her in the sense of being violation of her and the process which followed was also extremely difficult for her.

[4] I am bound to take into account the interests of the victim and here a vulnerable person was treated in a way which causes the very high penalties that apply to offending such as this.

[5] I know you do not accept that you committed these offences, but I am bound by the jury’s decision and the jury heard the facts and the complainant and came to the view they were sure beyond reasonable doubt.

[6] The principles and purposes of sentencing that I have to apply are that firstly I have to consider the harm to the victim, I have to try to make you responsible for what you have done. As I have said, you do not accept the offending, and that is a position that you can take. I do not treat you any more harshly because of that, but what I have to do is to sheet home to you the magnitude of what you have been found to have done.

[7] I have to deter you and others from offending such as this. I have seen from the report that has been provided that has been detailed that you are not regarded as somebody who has a high risk of sexual offending. That said you need to know that offending of this kind is treated extremely seriously.

[8] I have to take into account prospects of rehabilitation for you. That is more difficult with somebody who does not accept they have done anything wrong. But I also have to apply the least restrictive outcome in the circumstances.

[9] The Court of Appeal has set a guideline case that you may have heard of, R v A

M.1 That case sets out that there are factors that place offending in various categories. Where there are two or more aggravating aspects to offending, then that elevates the offending and makes it more serious and increases the penalties that are to be imposed.

[10] In this case the aggravating aspects are the age and vulnerability of the victim. You were 18 years of age and the difference between her age and yours, not as great as some, but notwithstanding that she was clearly a vulnerable person. There is the harm to the victim; the trial and the process of dealing with it and the acts themselves inherently harmful. And I must bear in mind the interests of the victim when I consider what sentence is to be imposed and the harm that has been done to her.

[11] There is a breach of trust. Although you were young you were placed in a position of looking after the children. Instead of doing that you abused the trust and did what could only have been for self-gratification.

[12] These multiple aggravating factors are not balanced in any way by anything that makes the offending less serious. There is no mitigation I can see from the offending itself. The starting point that I would need to consider is to some extent mirrored in other cases; R v Wirangi.2 and R v Stuski.3 But it has to be said that the victim in this case is younger than in R v Stuski.

[13] The starting point that I would consider appropriate is one of eight years’ imprisonment. That is taking into account the aggravating aspects of the offence, and, as I have said, I see no mitigating factors.

[14] As regards you, you have other convictions for various things. They are not of a similar nature and I do not uplift the starting point for any reason in relation to your criminal convictions.

1 R v A M

2 R v Wirangi [2007] NZCA 25

3 R v Stuski

[15] I have to consider your youth. Churchward v R.4 is a case that sets out the reasons why youthful people need to be treated in a way that is not the same as mature adults. That is for acting impulsively, for not realising the consequences of acts which have occurred and for those reasons at 18 years of age you are entitled to discounts in relation to the starting point that would not be available for somebody who was older.

[16] In addition there is a report which was obtained under s 38(2)(b) Criminal Procedure (Mentally Impaired Persons) Act 2003. This report refers to the incident [details deleted]. The report refers to your position as somebody who is in the cognitive ability of the extremely low to borderline range of intellectual function. That you have generally poor intellectual development, probably brought about by [medical details deleted] and poor educational engagement and emotional disposition that existed after [details deleted].

[17] The tests which are conducted in relation to verbal comprehension abilities placed you in the lower sub test score and reflect a poor educational background. It does not preclude you from rational conversations as evidenced by the interview, but your perception reasoning abilities are seen in the area of extremely low to low average.

[18] These are factors which have been exacerbated by your use of alcohol and drugs and the people that you have associated with have brought about a situation in which an already difficult situation as far as your ability to learn and your ability to cope with is concerned this has been made worse by the voluntary consumption of drugs and alcohol, which have only made your position worse.

[19] There is an absence of protective factors that might protect you against offending in the future, but by and large the report is indicative of you being someone who between a combination of youth and low intellectual and cognitive abilities is someone I have to see as not only an offender here, but someone who had vulnerabilities that are associated with you that are not found in most people.

4 Churchward v R [2012] NZSC 25

[20] They are factors I feel I have to take into account in your sentencing. Your provision of advice to Court’s report is limited in its scope because the stance which you have taken, that you did not commit these offences, means assessment of remorse and of possibilities for rehabilitation and other things that might be to your credit that I may have been able to take into account are unavailable to me. You do not get treated any worse because you do not accept the offending, but there are aspects that I might have been able to employ to discount the sentence which are simply not available to me to consider.

[21] My focus must be on what deduction to the eight year starting point I make in respect of your youth, and that is a factor that by itself I consider would justify up to 20 percent of reduction. And there is the intellectual and cognitive difficulties you have as a result of a brain injury and also the intellectual and emotional difficulties you have had with learning that have been a result not only of [medical details deleted] but of the tragic [details deleted], and the fact that your father is not prosocial and has not assisted you in any way that could have improved and enhanced your ability to function in a way that might have kept you safe.

[22] Accordingly, I am prepared to discount the eight year starting point. I do so by three years. This is to take into account your intellectual and emotional difficulties and your youth at the time of offending. This brings an end sentence of five years’ imprisonment. That sentence will be employed in relation to both of the two charges of sexual violation by unlawful sexual connection.

[23] Please stand up, Mr[Pringle]. You are sentenced to five years in respect of each of the two charges to which you face.

[24] I note by way of an addendum it is not for me to have any comment as far as the Parole Board is concerned, but I would like to see if I possibly could you to get as much support as you can in relation to your learning difficulties and your ability to cope with things without resort to drugs and alcohol, which would only make you vulnerable to getting into serious trouble as you did on this occasion.

[25] I accept an application for a review of your community work sentence and I cancel the community work sentence.

[26] One more thing, Mr [Pringle], I am sorry I have to give you a warning because this is a three strikes offence and I have to give you a warning in relation to that legislation. Also you will have to go onto the register for persons convicted of sexual offending.

[27] All right, so what I will have to do, with counsel’s leave and I will excuse counsel, as I will have to ask for Mr [Pringle] to come back. I will get the three strikes warning and I will read that to you. You will get a copy of it which will be given to you, but I have to give you that warning.

[28] So I just ask you to stand down and I will obtain the warning, and counsel are excused.

ADDENDUM:

[29] And I am sorry I did not refer to the support for the victim of the offending and the fact that you are there and have been there for her through the trial and everything. I realise how traumatic this whole business has been and your support for her is probably the most important thing she will remember about it. Thank you.

D J Sharp

District Court Judge