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Ballestero v Police

Ballestero v Police

Case [2024] NZHC 2922 8 October 2024

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ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF CONNECTED

PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2024-412-40

[2024] NZHC 2922

BETWEEN
AMADEO ENRIQUEZ BALLESTERO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 7 October 2024

Appearances:

K J Gray for Appellant

C E R Power for Respondent

Judgment:

8 October 2024

JUDGMENT OF EATON J

(appeal against sentence)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

ENRIQUEZ BALLESTERO v POLICE [2024] NZHC 2922 [8 October 2024]

Introduction

[1] Amadeo Enriquez-Ballestero pleaded guilty to a charge of knowingly making an objectionable publication,1 three representative charges of knowingly possessing an objectionable publication,2 two representative charges of doing an indecent act on a young person aged 12–14,3 and one specific charge of doing an indecent act on a young person aged 12–14.4 On 30 July 2024, he was sentenced by Judge Lynch to two years and six months imprisonment.5 Mr Enriquez-Ballestero appeals against that sentence.

Facts

[2] The now 45-year-old appellant met the 11-year-old victim in his capacity as a part-time science teacher. He then became friendly with the victim and the victim’s mother. The first representative charge of doing an indecent act on a young person relates to overnight trips the appellant took with the victim between 1 January 2021 and 31 December 2022. The appellant would sleep in the same bed as the victim, “spooning” him from behind while wearing baggy underwear that allowed his genitals to be exposed.

[3] The second representative charge of indecency relates to occasions the appellant visited the victim’s home between 1 June 2021 and 31 July 2023 when the appellant would get into the victim’s bed at night, “spoon” him and kiss him on his arms, wrists, head and feet. Occasionally, Mr Enriquez-Ballestero photographed the victim or change the victim’s clothes while the victim was in bed.

[4] On 11 March 2023, Mr Enriquez-Ballestero performed an indecent act while in bed with the sleeping victim. The appellant repeatedly touched the victim’s penis before masturbating him. The appellant videoed himself performing this indecency, giving rise to the charge of knowingly making an objectionable publication.

1      Films Videos & Publications Classification Act 1993, s 124(1) and (2)(a) — maximum penalty 14 years’ imprisonment.
2      Section 131A(1) and (2)(a) — maximum penalty 10 years’ imprisonment.
3      Crimes Act 1961, s 134(3) — maximum penalty seven years’ imprisonment.
4      Section 134(3) — maximum penalty seven years’ imprisonment.
5      R v Enriquez-Ballestero [2024] NZDC 17958.

[5] On 22 November 2023, the police executed a search warrant at Mr Enriquez-Ballestero’s home and seized his iPhone, computer, iPad, and two hard drives. These items were analysed and a total of 189 CSEM (child sexual exploitation material) images and videos were located on the devices, namely:

(a)Eight videos and one image fell within category A of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ballestero v Police

Details

AGLC: Ballestero v Police [2024] NZHC 2922
Case: [2024] NZHC 2922
Decision Date: 8 October 2024

CaseChat Overview and Summary

Amadeo Enriquez-Ballestero appeals against his sentence for multiple charges including making an objectionable publication, possessing objectionable material, and indecent acts on a young person. The District Court Judge sentenced him to two years and six months imprisonment, a sentence Ballestero argues was manifestly excessive. Ballestero's counsel argued that the starting points for the possession charges and indecency charges were too high and that the Judge did not allow sufficient credit for mitigating factors such as remorse and rehabilitation. The High Court found that while the starting points were at the higher end of the range, they were within range. The Court also found that the Judge did not err in his application of the totality principle. However, the Court did find that the Judge erred in not allowing a deduction for previous good character and that the deduction for remorse and rehabilitation was on the low side. Applying a 60% global deduction to the starting point of five years resulted in an end sentence of two years' imprisonment, which the Court found was appropriate. The appeal was therefore allowed and the sentence reduced to two years' imprisonment on each charge.

The Court imposed special release conditions and the suppression orders made by the District Court remained in place. Ballestero's appeal against the suppression order was abandoned.

Orders