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A 22-year-old who admitted unlawful sexual connection with a girl seven years his junior, spanning more than 10 months last year, has been sentenced to home detention.
Marshall James Penny, of Kingston, who was 21 at the time of the offending, between January 1 and October 18 last year, has also received his first strike under the three strikes legislation. However, Judge John Brandts-Giesen exercised his discretion in deciding not to add Penny's name to the Child Sex Offenders Register.
In the Queenstown District Court today, Judge Brandts-Giesen said early last year Penny, who was living in Alexandra at the time, met the victim, who lived in the Queenstown-Lakes.
The pair entered a relationship and at one stage she ran away from home to be with him, but police were called and she was returned to her home address.
At that stage they spoke to Penny about the relationship and advised him the victim was under age and it would be considered an offence if the relationship was of a sexual nature.
Oranga Tamariki and the police attempted to engage with the victim, but she refused.
On October 18 police were called to a family harm incident in Queenstown, where the defendant and victim were located.
The defendant was ultimately put in a police vehicle ahead of being taken to a mental health unit, and while sitting in the patrol car a member of the public handed him his cell phone.
When he unlocked it, sexual images of a young female — identified by police as the teenage victim — were observed on the screen.
The phone was seized and a subsequent examination revealed explicit images and videos of the victim, the latter also featuring the defendant.
Penny declined to comment on the footage, or confirm it was the victim, Judge Brandts-Giesen said.
Defence counsel Megan McCrostie said while aggravating factors included Penny being subject to an intensive supervision sentence at the time of the offending, the victim’s age, the seven-year age gap between the defendant and his victim, and that he knew the victim’s age, she submitted discounts should be applied for his relative youth, rehabilitative needs, mental health issues, alcohol abuse issues and other health-related factors.
Arguing for his name not to be added to the Child Sex Offenders Register, Ms McCrostie submitted a conviction of that nature was sufficiently punitive, he did not pose a risk to the ‘‘life or sexual safety of one or more children’’ and the likelihood of him reoffending was low.
She sought a sentence of home detention, which the Crown did not oppose.
The Crown was also not opposed to his name being omitted from the Child Sex Offenders register, but did seek an order for the destruction of his cellphone — that was opposed by the defence.
Judge Brandts-Giesen said a pre-sentence report indicated he was at medium risk of reoffending and at risk of harming others, and had accrued a new conviction every year since 2017.
However, his chronological age was higher than his emotional age, by at least two years, Judge Brandts-Giesen said.
He was sentenced to nine months’ home detention, to be served at a Waimate address, with special conditions including not to associate or have contact with the victim without prior written approval, or associate or otherwise have contact with any person under the age of 16 without the presence of another approved adult, confirmed in writing.
An existing community work sentence was cancelled and replaced with a further two weeks’ home detention.
Judge Brandts-Giesen said, in the circumstances, it was not necessary to add his name to the national register, ‘‘however, I do warn you, any further offending will inevitably result in you being registered as a sex offender’’.
He declined to issue an order for the destruction of Penny’s cellphone, but ordered all data, in particular that deemed objectionable, be deleted.