R v Henson [2016] NZHC 1543 (8 July 2016)

High Court of New Zealand

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R v Henson [2016] NZHC 1543 (8 July 2016)

Last Updated: 8 July 2016

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF VICTIMS/CONNECTED PERSONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2016-063-000542 [2016] NZHC 1543

THE QUEEN

v

_{BRENDAN PAUL HENSON}

Counsel:	B D Vanderkolk and M J R Blaschke for Crown F D Steedman for Defendant
Sentence:	8 July 2016

_{NOTES ON SENTENCE OF COLLINS J}

Introduction

[1] Mr Henson, this morning I am sentencing you on the following charges: (1) two charges of indecently assaulting a child under 12;¹ and

(2) one charge of abduction for the purposes of sexual connection.²

_{[2] You pleaded guilty to these charges on 24 March 2016.}

¹ _{Crimes Act 1961, s 132(3). Maximum penalty is 10 years’ imprisonment.}

² _{Crimes Act 1961, s 208. Maximum penalty is 14 years’ imprisonment.}

R v HENSON [2016] NZHC 1543 [8 July 2016]

[3] The District Court declined jurisdiction to sentence you so that a sentence of preventive detention could be considered.³ I have decided not to impose a sentence of preventive detention and I will explain why during the course of this decision. I record however, the Crown acknowledges that it would be difficult to impose such a sentence on the basis of the materials before me.

[4] In sentencing you I shall:

(1) describe the circumstances of your offending;

(2) examine the impact of your offending on the victim and her family; (3) outline your previous offending;

(4) outline your personal circumstances;

(5) explain why preventive detention is not suitable in the circumstances of this case;

(6) explain the starting point to your sentence;

(7) explain the adjustments that I am making to that starting point; (8) explain your sentence; and

(9) explain the minimum period of imprisonment that I shall impose.

The circumstances of your offending

[5] The three charges relate to two separate incidents of sexual offending by you against your victim, a five year old girl whom you did not know.

[6] The first incident occurred on Wednesday 10 February 2016 at about

3.00 pm. You watched the victim and her sister from a park bench, before inviting

the victim to come and sit with you. You indecently touched her leg before the victim’s sister intervened and the two girls ran home. You were subsequently seen on CCTV footage travelling in the same direction as the girls in your car. The next morning you were also observed driving down the same street towards the victim’s home.

[7] The second incident occurred on the morning of Friday 12 February 2016. Your car was travelling towards the victim’s home at about 8.20 am, shortly before the victim and her sisters walked to school. As the victim and her sisters were walking to school, you pulled up beside them, got out of your car, picked the victim up and put her in your car. The victim’s sisters tried to stop you.

[8] You then drove off with the victim and took her to a rural location outside of Palmerston North, where you indecently assaulted her. You took off the victim’s pants, masturbated yourself, and then rubbed your ejaculation onto the victim’s genitalia.

[9] You then took the victim back to Palmerston North to the opposite side of the city to where she lives. She was found at about 10.30 am. The abduction was just a little over two hours in duration.

The impact on the victim

[10] The victim’s mother’s statement, which you have heard this morning demonstrates how devastating your offending has been to the victim and her family.

[11] The victim’s mother has noticed a lot of behavioural and emotional changes to the victim since the offending. She says that the offending has also impacted their whole family, including the victim’s sisters. She says that the victim cries and she has nightmares.

[12] A letter from the victim’s school principal shows a concern toward the victim in terms of her heightened anxiety and social interactions. She says the victim has become very tearful and easily upset.

Previous offending

[13] You have previously been convicted and fined in 1981 for one charge of cultivating cannabis. I put that matter to one side.

[14] You have two relevant convictions from Australia in 1991 for sexual offending against a young girl the same age as the victim in this case. You were sentenced to one year and three months’ imprisonment for that offending.

Personal circumstances

[15] You are 47 years old.

[16] You say you were the victim of both physical and verbal abuse by a male adult in your life until about the age of 11. You say you were also the victim of a period of sexual offending by neighbours when you were approximately seven years old. You say this offending against you included viewing pornography and overtly sexual activity.

Preventive detention

[17] The Crown acknowledges that it would be extremely difficult for me to impose a sentence of preventive detention on the basis of the materials currently before me. I will, however, explain why I am not imposing that sentence.

[18] Section 87 of the Sentencing Act provides for consideration of preventive detention in certain circumstances and lists five mandatory factors the court must take into account. These are:⁴

(1) any pattern of serious offending disclosed by the offender’s history;

(2) the seriousness of the harm to the community caused by the offending;

(3) information indicating a tendency to commit serious offences in the future;

(4) the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and

(5) the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

[19] Your previous offending occurred almost 24 years ago and there has been no repeat offending in the intervening period. Having said this, I am concerned about the assessments of the psychologist who says there is a moderate to high risk of you engaging in sexual offending again if you do not address the causes of your offending.

[20] However, you have displayed a desire to address the causes of your offending and to participate in a special treatment programme for child sex offenders. Your motivation to participate in treatment programmes is an important factor in my decision that a lengthy determinate sentence is preferable and will provide adequate protection for society in your circumstances.

Starting point

Abduction charge

[21] The abduction for the purposes of sexual connection is the most serious offence in the circumstances. There is no tariff case for either kidnapping or abduction. I consider the relevant aggravating features of the offending to be as follows:

(1) Level of Violence. You picked up the victim and put her in your car against her will.

(2) Vulnerability of the victim. The victim was only five years old at the time of the offending. She was walking to school.

(3) Premeditation. The offending was clearly premeditated. You pursued the victim over a 48 hour period or possibly longer. CCTV footage shows you drove on the street where the victim lived on multiple occasions and you have subsequently admitted that you planned to abduct the victim.

(4) Length of detention. The victim was detained for a period of over two hours.

(5) Harm to the victim. The offending has clearly had a catastrophic impact on the emotional state of a five year old girl and her family.

(6) Actual sexual offending. This court has set out a number of culpability assessment factors for indecency offending against children.⁵ Having regard to those factors, I consider your indecent act was intrusive and significant. The combination of your masturbating, and the indignity of your touching the victim made this a serious case of indecent assault.

[22] R v Lepper⁶ is recent authority for the proposition that violent or forced abductions are considerably more serious than the deceitful offering of lifts, or brief detentions such as in R v Burgess.⁷ Like the offending in R v Lepper, you engaged in an abduction which was violent and forceful. The vulnerability of your victim and the high level of premeditation are two additional factors which aggravate your offending to a level requiring a starting point of seven years and six months’ imprisonment for the abduction charge.

Provisional uplift

[23] The actual sexual offending that occurred during the abduction and its seriousness leads me to add a further three years’ imprisonment to your provisional

_{sentence. If I were sentencing you for that offence alone I would likely have}

⁵ _{R v Paki [2012] NZHC 3494; R v Thorpe [2012] NZHC 229.}

⁶ _{R v Lepper [2014] NZHC 3015.}

⁷ R v Burgess [2007] NZCA 274.

considered a sentence in the range of four to five years’ imprisonment. The totality principles in the Sentencing Act⁸ do not permit me to simply add the sentence I would have independently given for that offence to the seven and a half years for the abduction offence. Instead I impose a provisional starting point of 10 and a half years’ imprisonment for the abduction charge.

[24] The first indecent assault was serious but can be dealt with by way of a discrete concurrent sentence.

Adjustments to starting point

[25] Mr Steedman submits that your decision to bring the victim back to Palmerston North justifies a revision of the starting point. He submits that you intentionally took the victim to a part of Palmerston North where she might be safer.

[26] That may be so. However, there is no authority for the proposition that a decision to relent can constitute a mitigating factor for offending of this nature. The offending had already occurred and the period of detention was over two hours.

Previous offending

[27] Section 9(1)(j) of the Sentencing Act requires me to take into account the number, seriousness, date, relevance and nature of previous convictions.

[28] Your previous convictions in Australia for sexual offending against a five year old girl are of a similar nature to the current offending. Your previous convictions occurred when you were a boarder at the place where your offending took place and it involved you pulling down the underpants of a five year old girl and inserting your finger into her vagina when she was asleep.

[29] Although that occurred many years ago, the psychologist’s report expresses concern about your “sudden relapse” into sexual offending 24 years later and notes the “increase in level of coercion” involved.

[30] In taking account of your previous sentence, I am mindful of the need not to punish you unnecessarily for your previous offending. I have, however, resolved that an uplift of six months should be imposed to reflect your previous offending.

Guilty pleas

[31] You have pleaded guilty at a very early stage. You are entitled to a significant discount for this and you will receive a discount of 25 per cent.

Remorse

[32] You have expressed through Mr Steedman, remorse for your offending. I do consider this to be genuine remorse⁹ and that it entitles you to a further discount of three months’ imprisonment.

[33] This leads to a final sentence of eight years’ imprisonment.

Minimum period of imprisonment

[34] A minimum period of imprisonment is sought by the Crown pursuant to s 86 of the Sentencing Act and is appropriate in the circumstances. I may impose a minimum period of imprisonment than the period otherwise applicable if I am satisfied that that period is insufficient for all or any of the following purposes:

(1) holding the offender accountable for the harm done to the victim and the community by the offending:

(2) denouncing the conduct in which the offender was involved:

(3) deterring the offender or other persons from committing the same or a similar offence:

(4) protecting the community from the offender.

[35] In particular, a minimum period is necessary to protect young female victims in the community who may not know you.

[36] The psychologist has assessed you at a moderate to high risk of sexual offending. It has also been recommended by two health assessors that you complete a special treatment programme for child sex offenders, which you have agreed to. These two considerations lead to a conclusion of a minimum period of imprisonment of five years.

Conclusion

[37] Mr Henson, please stand.

[38] You are sentenced to eight years’ imprisonment with a minimum period of imprisonment of five years’ imprisonment in relation to the abduction charge.

[39] You are sentenced to a concurrent sentence of two years’ imprisonment in

relation to the first abduction charge.

[40] You are sentenced to four years’ imprisonment in relation to the second indecent assault charge. That sentence is concurrent as I have factored it in when setting the starting point of 10 and a half years’ imprisonment for the abduction charge.

[41] Stand down.

ADDENDUM:

A member of the media advised that the victim impact statements had already been published online and were ordered to remove them.

Solicitors:

Crown Solicitor, Palmerston North

Fergus Steedman, Palmerston North for Defendant

D B Collins J