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High Court of New Zealand Decisions |
Last Updated: 23 July 2018
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NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR
IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL
PROCEDURE ACT 2011.
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IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
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CRI-2015-059-873
[2018] NZHC 1287 |
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THE QUEEN
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v
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RICHARD JAMES PARKINSON
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Hearing:
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1 June 2018
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Appearances:
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C Wilkinson-Smith for the Crown
C P Brosnahan and L Scott for the Defendant
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Date:
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1 June 2018
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SENTENCING OF CULL J
[1] Mr Parkinson, you appear for sentence today in relation to seven charges:
(a) one charge of attempted sexual connection with a child;1
(b) two representative charges of indecent act on a child;2
(c) two representative charges of indecent act on a young person;3
1 Crimes Act 1961, s 132(2). Maximum penalty is 10 years’ imprisonment.
2 Section 132(3). Maximum penalty is 10 years’ imprisonment.
3 Section 134(3). Maximum penalty is seven years’ imprisonment.
R v PARKINSON [2018] NZHC 1287 [1 June 2018]
(d) one charge of sexual connection with a young person;4 and
(e) one representative charge of possessing objectionable material.5
[2] You pleaded guilty to these charges on 2 March 2018, which was at the end of the third week of a judge-alone trial at the close of the prosecution case.
[3] Convictions were not entered in relation to these charges at the time of the pleas and I enter the convictions for these charges now.
[4] In sentencing you today I am going to explain:
(a) your offending;
(b) your personal circumstances;
(c) the sentencing process;
(d) the starting point I have adopted and why;
(e) the adjustments I have made to the starting point to reflect the totality of your offending, your personal circumstances and guilty plea;
(f) the minimum period of imprisonment you must serve;
(g) your final sentence; and
(h) the consequences for you of your offending.
4 Section 134(1). Maximum penalty is 10 years’ imprisonment.
Your offending
[5] There are four victims in this case: I am going to refer to them simply as J, P, C and S. Your offending can be dealt with chronologically and broken into three groups.
Offending against J and P
[6] You committed the first group of offending against two young girls, J and P, between 1 July 2008 and 14 August 2010. This group of offending includes the charge of attempted sexual connection with a child and the two representative charges of indecent act on a child. At the time of this offending, you were between ages 34 and 36 years of age, while the victims were between 7 and 11 years of age. You would babysit the victims at your house, where you lived with your wife and daughter at the time.
[7] In relation to the indecent assault offending, you offered the victims alcohol and indecently assaulted both victims on at least five occasions, by touching their buttocks and genitalia. On one occasion, you removed P’s clothes, including her underpants, exposed her vagina and put your penis on her leg. On occasions, the victims saw pornography playing on your computer.
[8] The attempted sexual connection occurred on a particular occasion when you were swimming in your pool with the victims, you were actually seated while they were creating a whirlpool in the pool around you. As you sat in the pool, you held J on your lap, pulled her togs to the side and contacted your penis with her genital area.
Offending against C and S
[9] You committed the second group of offending against two male teenagers, C and S, between 15 January 2015 and 1 September 2015. This group of offending includes the charge of sexual connection with a young person and the two representative charges of indecent act on a young person. At the time of this offending, you were aged between 41 and 42 years, while the victims were 14 and 15 years of
age. The victims knew you through a mutual friend, whom they accompanied to your house on various occasions.
[10] In relation to the indecent assault offending, the victims would stay with you over weekends, at separate times. You provided the victims with access to alcohol, showed them pornography videos and let them play on your computers and gaming consoles. After requesting C remove his clothing for it to be washed, you watched him remove his clothes, refused to leave the room when asked and pulled a towel off the victim, leaving him standing naked. You also masturbated C on one occasion for at least 10 minutes after he had woken up. In a similar fashion, you also watched while S removed his clothing and ripped a towel off him so that you could see his genitals. On at least two occasions, you also touched S’s leg and stroked his penis while you were watching a movie.
[11] You committed the sexual connection against S when you masturbated S and then sucked on S’s penis. You paid $100 to do this.
Possessing objectionable material
[12] The final group of offending is the representative charge of possessing objectionable material. On 21 September 2015, police executed a search warrant at your house and located a portable hard drive with numerous objectionable materials. The drive was a backup of original files, in the format of thumbnail images. These thumbnails are generated when the computer user views the file in its original form. The original files were both images and video files. The content of the thumbnail images was assessed as objectionable and included sexual conduct between adults and children or young people.
Victim impact statements
[13] All of the victims have provided statements, along with some of their family members. Some of these statements have been read out in court this morning. Mr Parkinson, it is clear that your offending has had a profound impact on all of the victims and their families and you have heard directly from some of those family members this morning. The statements indicate that each of the victims have, in his
or her own way, been psychologically and emotionally damaged by their experiences of your offending.
[14] S described that he is less social following the events, he is embarrassed that people might find out, how the trial put stress and pressure on him and he has had trouble sleeping. S’s parents as we have heard, have noted the difficulty and stress this has caused their family and the changes they have seen in their son.
[15] C described that his outlook on life has changed, he gets nervous going to other people’s houses, he lost control of his behaviour following the offending and now trusts other people less. His mother whom we have also heard from, described changes to C’s behaviour and personality as a result and her own very real depression has resurfaced because of similar experiences she faced as a child.
[16] J described how you ruined her teenage years and breached her parents’ trust. It has impacted on her relationships with her family and her ability to trust other men in a close relationship. P’s statement similarly described issues of being able to trust other people. J and P’s parents outlined the significant impact your offending has had on their family, emotionally and financially, as well as how you breached their trust.
[17] I turn then to your personal circumstances and I want to start with your previous offending.
Your personal circumstances
[18] You have eight previous convictions for obscenely exposing yourself in public, all from 1994. You received one years’ supervision for the offending. However, because of the historical nature of this offending and the low penalty imposed, as the Crown appropriately acknowledges, I have not taken this offending into account in setting your sentence today.
[19] I have received three reports prior to sentencing today: a pre-sentence report from Corrections, a psychological report completed by Shelly Lomas and an updated
report from her which we received this morning following your discussions with her yesterday.
Pre-sentence report
[20] Your pre-sentence report states that you are at high risk of reoffending and at a high risk of causing harm to others, should you reoffend. The report recommends a sentence of imprisonment because of the serious and prolonged nature of your offending and your need for intensive treatment.
[21] The report identifies that you have expressed remorse for your offending, particularly after seeing the impact your actions have had on the victims. The writer notes that it is difficult to assess how genuine your comments are. Although, it may be now, that the impact of your offending has become tangible, you are comprehending the serious consequences of your actions. This has come through in the recent reports from Ms Lomas. You have expressed the desire to leave prison and never offend again. You reported wanting to be able to tell others about the impact of sexual offending against children, now that you have witnessed the consequences of your actions first hand.
[22] The report strongly recommends you receive intensive treatment while serving your sentence. Programmes such as Kia Marama or Te Piriti are recommended to address your offending-related sexual arousal as well as an alcohol and other drug intensive programme to address your alcoholism. Such treatment is critical to mitigate your risk of reoffending. The report identifies that you have expressed a high level of willingness to engage in treatment to address these issues and your counsel reaffirms that this morning. Your medication for depression and diabetes while in custody has been appropriate and this will need to continue.
Psychological reports
[23] Prior to your sentencing today, Ms Lomas completed an initial psychological report on 22 May 2018. Ms Lomas used two actuarial measures to assess your likelihood of reoffending, which concluded you were at an above average and a high risk of committing further sexual offending. She highlighted that the areas of definite
concern for you are your emotional identification with children, your use of sex as a coping mechanism and your deviant sexual preference towards children.
[24] She detailed your personal circumstances and history. Your early childhood was characterised by disharmony in your parent’s marriage as well as physical and verbal violence from both your father and step-father. There was verbal violence but also there was physical abuse. Ms Lomas comments that you do not appear to have received many experiences of positive parenting during your childhood. You were bullied at school and struggled to make friends and socialise with others. For a long time now you have abused alcohol and used it to help manage your emotions. Your drinking increased alongside your own marriage and parenting difficulties. You have accessed mental health services previously as your counsel has referred to this morning, and have had issues with inappropriate sexual thoughts about children, self- harm and alcoholism.
[25] Ms Lomas too identifies that you require treatment for your sexual offending, which can be completed in prison. This treatment should address your distorted thinking around children, your challenges with interpersonal relationships, your sense of mastery and self-fulfilment. It is likely that without this treatment you will continue to be at risk of further sexual offending. Ms Lomas also recommended that you would benefit from counselling to address the issues from your childhood and vocational training that would allow you to work toward gaining employment.
[26] Ms Lomas recorded that you are keen to participate in treatment, readily recognised that your thoughts about children need to change and that you have the support of your ex-wife, whom you trust, to engage in treatment. All of these factors bode well for your rehabilitation.
[27] Following your discussions yesterday, Ms Lomas has subsequently completed an updated report. In that, she detailed two occasions, when you yourself were sexually assaulted and she confirms that your own sexual abuse is a factor in this offending. Importantly, she reconfirms that you have insight into your behaviour and you are fully open to seeking treatment. She also recommends that you be given counselling and treatment in respect of the extremely traumatic experience you had
when you were 16 years old, the details of which you have only just been able to disclose, although as your counsel has said you have attempted to raise it before, but the full details are contained in that report and Ms Lomas notes that this is the first time you have been able to properly address those.
Sentencing purposes and principles
[28] When I sentence you, I must take into account the purposes and principles of sentencing.6 I have to hold you accountable for the offending on which you have pleaded guilty. I have to consider deterrence, not just to deter you from further offending, but also to deter others. I have to consider the need to protect the community from offending against children and young people such as this. I also have to denounce your offending. The victim impact statements make it clear that your offending has had a serious and long-lasting impact. As the defence acknowledge, victim harm is a relevant consideration for the Court in assessing overall seriousness of your offending. At the same time, one of the purposes of sentencing any offender is to help you to get back into the community and to be a useful member of it.
[29] In your case, I consider that the relevant principles of sentencing are the gravity of your offending, including your own responsibility for it, particularly in light of your own traumatic experiences in your youth, and the seriousness of your offending in comparison with other similar cases. I also consider that your personal circumstances, the traumas of your past, including your mental health and rehabilitation, need to be taken into account, so it is a balancing exercise.
Starting point
[30] I turn then to the starting point of your sentence. After receiving these submissions from both the Crown and the defence I have decided that I will set separate starting points for each group of offending and apply a cumulative approach, recognising the principle of totality. There is no tariff case for this type of offending and so I have set the starting points for your offending by reference to comparable cases.
6 Sentencing Act 2002, ss 7 and 8.
[31] In relation to your first group of offending, against J and P, I consider the aggravating factors of your offending are:7
(a) The age and vulnerability of the victims: as I have said, at the time of your offending J and P were between 7 and 11 years of age, while you were aged between 34 and 36. They were vulnerable children.
(b) The degree of abuse of trust: the offending occurred while you were babysitting for the victims and they were in your care. You gained the trust not only of the victims but of their parents who trusted you to take care of their family. The significant degree to which you abused their trust is evident as you have heard in their victim impact statements.
(c) The intrusiveness and intensity of the behaviours and acts: at times the offending involved skin-to-skin contact, including touching the victims’ buttocks and genitalia and putting your genitalia on the victims’ bodies. The charge of attempted sexual connection is particularly intrusive, as you attempted to connect your genitalia with J’s.
(d) Repeated instances of offending against the victims: the two charges of indecent assault against these victims are representative charges, as you assaulted each of them on at least five occasions over a two year period. This was prolonged and persistent offending. I note, however, that the charge of attempted sexual connection relates to one particular incident only.
(e) Pre-meditation: although you and your counsel have said your offending is not pre-meditated and you acted spontaneously, I find it hard to accept this. As the pre-sentence report noted, you offended on
multiple occasions and in situations where the victims were in your care. This demonstrates that you continued to take them into your care with the knowledge that you had the ability to re-offend, which you then did. You offered them alcohol, which would have impaired their judgement significantly but it was also something that they could not get elsewhere and they had alcohol in your presence and at your place.
(f) The harm caused to the victims: as is clear from the victim impact statements, you have caused significant emotional and psychological harm to both victims. You have impacted the relationships the victims have with others, including their family.
[32] In my assessment, this first group of offending warrants a starting point of four years’ imprisonment. Although there is no charge of sexual connection, this offending is serious because of the age of these victims, their vulnerability, the prolonged nature of your offending and the significant breach of trust involved. I have reached this conclusion after considering similar cases which have been presented to me by counsel for both the Crown and the defence and after evaluating the gravity of your offending.8
[33] In relation to your second group of offending, against C and S, I consider the aggravating factors of your offending are:
(a) The age and vulnerability of the victims: C and S were 14 and 15 years of age at the time, while you were between 41 and 42 years of age. Although not as vulnerable as J and P, these were still two teenage boys who were entrusted into your care.
(b) The degree of abuse of trust: this offending also took place while the victims were staying with you at your house.
(c) The intrusiveness and intensity of the acts: some of the offending involved skin on skin contact, including where you masturbated both
boys. Further, the charge of sexual connection against S was perhaps the most intrusive act of your offending, as you masturbated and sucked on his penis.
(d) Repeated instances of offending against the victims: the two charges of indecent assault against these victims are representative charges, as you assaulted each of them on multiple occasions over an eight month period. The charge of sexual connection only relates to one particular incident, however.
(e) Pre-meditation and predatory behaviour: again, although you deny this, your offending against C and S was clearly premeditated. You invited them to your house, provided them with alcohol, showed them pornography and let them play on your computers and gaming consoles.9 You created an atmosphere where you could then commit these offences. You even gave S $100 to permit your behaviour. This is predatory behaviour in a far more serious sense than you had committed previously.
(f) Lastly in relation to this group, the harm caused to the victims: again, it is clear from the victim impact statements the profound emotional and psychological impact your offending has had. Their behaviour and personalities have changed as a result of your actions.
[34] I consider this group of offending warrants a starting point of four and a half years’ imprisonment. This is slightly higher than your first group of offending because of the greater degree of intrusiveness of your acts and the significant degree of pre- meditation and predatory behaviour you elicited. This starting point is also comparable with other similar cases of offending.10
Adjustments to reflect the totality of your offending
[35] The Sentencing Act requires me to have regard to the totality of your offending.11
[36] In my assessment, the cumulative starting point for your offending of eight and a half years’ imprisonment needs to be adjusted downwards by 18 months. This is to reflect the scale of your offending as a whole and to ensure your sentence is comparable to the other similar cases of offending I have already referred to.
[37] This would bring the adjusted starting point, in my assessment, to seven years’ imprisonment. In my view, this adequately reflects your culpability for all of your offending. I have decided not to impose an additional uplift for the final representative charge you face, of possessing objectionable material.
Personal mitigating factors
[38] Your counsel, Mr Brosnahan, and the Crown accepts to a lesser degree, that you are entitled to discounts for a range of personal circumstances.
[39] I acknowledge that you have tried to seek treatment previously and this, for various reasons, has not been successful. Mr Brosnahan has asked me to place no weight on some of the comments that have been made in this regard and I do not do so. I believe that you have shown genuine remorse and a desire to rehabilitate yourself, as both the pre-sentence and psychological reports demonstrate.
[40] I also recognise that you have mental health issues, as evidenced by Ms Lomas’ report and of course, the report this morning. You were a victim of sexual offending yourself as a child and a teenager, and suffered physical abuse by your father and step father. It is likely that these have impacted on your ability to have healthy relationships and this in effect was the submission this morning that your trauma was a factor in forming relationships which ultimately proved to be dysfunctional. Ms Lomas’
11 Sentencing Act 2002, s 85.
psychological assessments also confirm importantly that these experiences materially contributed to your offending.12
Guilty plea discount
[41] The final adjustment I will make is to recognise that you did plead guilty for what you are being sentenced on today. You pleaded guilty at the end of the third week of a judge-alone trial and at the end of the Crown case. The victims did have to give their evidence and they were cross-examined in court, and of course, you were entitled to have this tested. The pleas that you made were to substantially amended charges from what you faced at trial. I am taking into account the defence submissions about the need to do that in light of the wide range of charges, with which you were initially charged. I have to acknowledge that these pleas were not entered at the first available opportunity, but I recognise that you have had an opportunity and did need to test them and that you have accepted responsibility for your offending and your plea has saved this Court further time and resources.13
[42] I am giving you a discount in a cumulative way in recognition of all of the above factors. I am giving you a discount of 12 months’ imprisonment.
[43] Applying these adjustments, your final sentence is one of six years’ imprisonment, which attaches to the most serious offence of sexual connection with a young person, but which reflects the seriousness of the offending as a whole.
Minimum period of imprisonment
[44] In your case I believe it is necessary to impose a minimum period of imprisonment in order to:14
(a) hold you accountable for the serious harm done to the victims;
13 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45] and [73]–[77].
14 Sentencing Act 2002, s 86(2).
(b) denounce your conduct, particularly as it was committed against vulnerable children and young people in your care;
(c) deter others from committing similar offences; and
(d) protect the community from you, as you are currently at a high risk of reoffending and require intensive treatment to reduce this.
[45] The minimum period of imprisonment you must serve is three years. That will be attached to the sentence of six years on the most serious charge. I believe this is the least restrictive sentence that I can impose in your case.
[46] You have demonstrated however, that you are an appropriate candidate for intensive treatment and this will likely reduce your prospects of reoffending if your willingness to engage in rehabilitation is translated into action. This needs to be the priority of your sentence and I am making these comments deliberately because I want to see that at the end of your sentence you have received the treatment you so desperately need.
[47] Ultimately, it will be for the Parole Board to ensure you have had the opportunity to attend treatment courses and accessed the rehabilitation you need, as underlined in my sentencing notes today and I want to add that as a result of the addendum to the psychological report from Ms Lomas, she is also again reinforcing that you be offered treatment around your own traumatic experience that occurred when you were 16 years old. You need further treatment for this.
Final sentence
[48] Mr Parkinson, would you please stand.
(a) On the charge of sexual connection with a young person, you are sentenced to six years’ imprisonment.
(b) On the charge of attempted sexual connection with a child, you are sentenced to four years’ imprisonment.
(c) On each of the charges of indecent assault with a child, you are sentenced to three years’ imprisonment.
(d) On each of the charges of indecent assault with a young person, you are sentenced to two years’ imprisonment.
(e) On the charge of possessing objectionable material, you are sentenced to six months’ imprisonment.
[49] All sentences are to be served concurrently. This means the time you will be serving in prison for all your offences will run together.
[50] Your effective end sentence is six years’ imprisonment and you must serve a minimum period of imprisonment of three years.
Consequences of your offending
[51] As a consequence of your offending I must now read you the first strike warning and you would understand that this is part of the three strikes legislation which is still currently the law. One consequence of your offending is that I must give you a warning under s 86B of the Sentencing Act. Mr Parkinson, given your convictions for attempted sexual connection with a child, indecent assault on a child, indecent assault on a young person and sexual connection with a young person you are now subject to the three strikes law. I am now going to give you a warning of the consequences of another serious violent conviction. You will also be given a written notice outlining these consequences, which lists the ‘serious violent offences’ that I have just referred to.
(a) If you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.
(b) If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.
Child Sex Offender Register
[52] One further consequence for you today is your registration on the Child Sex Offender Register. Because you have committed qualifying offences and have been sentenced to imprisonment, you are a registrable offender under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016.15 This means you are required to be entered onto the Child Sex Offender Register. This places reporting obligations on you and you will be given written notice of those obligations and penalties.
[53] Please stand down.
Cull J
Wilkinson-Smith Lawyers, Whanganui
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