Bell v The King - [2024] NZHC 472

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-000148

[2024] NZHC 472

MARK WILLIAM BELL

v

THE KING

Hearing: 27 February 2024

Appearances:

S Green for the Appellant T Afoa for the Crown

Judgment:

7 March 2024

JUDGMENT OF WALKER J

This judgment was delivered by me on 7 March 2024 at 3 pm Registrar/Deputy Registrar

Counsel:

S Green, Barrister, Auckland
T Afoa, Gordon Pilditch, Crown Solicitor Rotorua

BELL v R [2024] NZHC 472 [7 March 2024]

[1] The appellant, Mark Bell, appeals the sentence imposed on him by Judge E P Paul of one year and 11 months’ imprisonment in respect of four charges of indecent assault on a young person.1

[2] Mr Bell argues that the Judge erred by failing to give him a sufficient discount for his guilty plea, however the principal focus of the appeal is the Judge’s refusal to commute the sentence to one of home detention at a rehabilitative facility. He argues that the sentence was, by dint of that refusal, manifestly excessive.

[3]The Crown opposes the appeal.

The offending

[4] The offending occurred while Mr Bell was caring for the complainant [REDACTED]. The 13-year-old complainant was sleeping in Mr Bell’s bed. She woke to hear him moaning. He then put his hands into her pants and touched her bottom. She tried to move away. He grabbed her and pushed his penis against her for approximately 10 minutes. He tried to pull her on top of him and asked her if she would sleep with him. He also touched her breasts under her shirt and rubbed her genitalia inside her underwear for a brief period.

[5] The four charges therefore relate to one incident rather than multiple incidents over time.

District Court sentencing

[6] The Judge adopted a starting point of two years and six months’ imprisonment for the lead charge. Notably, counsel for the appellant and Crown agreed the starting point was appropriate. He then identified several aggravating features, namely:

(a)The age of the victim.

1 R v Bell [2023] NZDC 26291.

(b)Breach of trust from [REDACTED].

(c)Vulnerability of the victim.

(d)Intrusiveness and intensity of the offending acts.

[7] The Judge applied an uplift of three months for breach of a sentence of community work and failure to answer bail. The community work sentence related to a separate conviction for receiving, for which Mr Bell had been sentenced on 17 March 2022. In November 2022, Mr Bell had breached his bail terms by absconding from the Red Door facility, the rehabilitation centre to which he now seeks to serve his sentence. He only returned to the centre in February 2023. That led to an adjusted starting point of two years and nine months’ imprisonment.

[8] In terms of the mitigating matters, the Judge’s views are encapsulated in the following…

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 Bell v The King

Details

AGLC: Bell v The King [2024] NZHC 472
Case: [2024] NZHC 472
Decision Date: 7 March 2024

CaseChat Overview and Summary

In Bell v The King, the appellant, Mark Bell, appealed against the sentence imposed on him by Judge E P Paul of one year and 11 months’ imprisonment in respect of four charges of indecent assault on a young person. The principal focus of the appeal was the Judge’s refusal to commute the sentence to one of home detention at a rehabilitative facility. The Crown opposed the appeal.

The key legal issues were whether the sentence imposed was within range and whether there was a material error in the Judge’s refusal to commute the sentence to home detention. The Court considered the principles of sentencing, the purposes of sentencing, and the specific aggravating and mitigating factors in the case. The Court noted that the offending was not historical but recent, and that the victim had suffered a deep and potentially long-term impact. The Court also recognised the potential benefits of home detention for Mr Bell’s rehabilitation. However, the Court concluded that imprisonment was the only sentence that appropriately held Mr Bell accountable for the harm to the victim, adequately denounced his conduct, and met the purposes of general and specific deterrence. The Court found that there was no material error in the Judge’s decision not to commute the sentence.

In conclusion, the Court dismissed the appeal and upheld the sentence of one year and 11 months’ imprisonment.

Orders