BETWEEN H Appellant AND THE KING Respondent - [2023] NZHC 3500

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF

APPELLANT/COMPLAINANTS PURSUANT TO SS 201 AND 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2023-419-000080

[2023] NZHC 3500

BETWEEN
H

Appellant

AND

THE KING

Respondent

Hearing: 4 December 2023

Appearances:

K W Burroughs for Appellant L K McMaster for Respondent

Judgment:

4 December 2023

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 4 December 2023 at 4:45 pm

Registrar/Deputy Registrar

……………………………..

Counsel/Solicitors:
Crown Solicitor, Hamilton K W Burroughs, Hamilton

H v R [2023] NZHC 3500 [4 December 2023]

[1] Ms H appeals her sentence of four years and six months’ imprisonment imposed in the Hamilton District Court by Judge N D Cocurullo after pleading guilty to historic sexual offending comprising seven charges of sexual violation by unlawful sexual connection and two charges of indecency with a girl under 12.1

[2] Ms H appeals on the grounds that the Judge gave an insufficient discount for her documented history of sexual abuse and the subsequent post-traumatic stress disorder (PTSD) she suffered, and for her inability to thrive in life because of those two factors. In support of her appeal, Ms H seeks leave to admit a report from a forensic psychiatrist clarifying the impact PTSD has had on her.

The offending

[3] Ms H’s offending took place between the mid-1980s through to the mid-1990s, from when she was 13 years old through to when she was 21 years old.

[4] Between 1986 and 1990, when Ms H was aged between 13 and 16 years old, she shared a bedroom with her brother, A, while they were living with their father in Hamilton. On several occasions over the course of this period, Ms H induced A to perform oral sex on her, performed oral sex on him and later induced him into having sexual intercourse with her by placing his penis into her vagina. Ms H would cover A’s mouth to prevent him making any sounds and told him not to say anything otherwise their father would assault them both. Given the frequency and duration of the offending, A believed that this was normal behaviour. He was aged between eight and 11 years old at the time.

[5] Similar offending against A occurred between 1990 and 1994 when Ms H and A lived with their mother in Hamilton, at multiple addresses. By this stage Ms H was aged between 16 to 20 years old, while A was aged between 12 to 15 years old. Ms H carried out this offending while other members of the household were intoxicated or under the influence of drugs, and when she was both sober or under the influence of

1 R v H [2023] NZDC 18748 [Sentencing notes]. The Judge made an order permanently suppressing the appellant’s name and other identifying facts in order to protect the statutory suppression of the complainants.

drugs and alcohol herself.…

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.

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Details

Case: [2023] NZHC 3500
Decision Date: 4 December 2023

CaseChat Overview and Summary

In the case between H, the Appellant, and the King, the Respondent, the High Court of New Zealand reviewed Ms. H's appeal against her sentence. Ms. H had been sentenced to four years and six months in prison for historic sexual offenses, including charges of sexual violation and indecency with a minor. The appeal was based on the grounds that the sentencing judge did not adequately consider Ms. H's history of sexual abuse, which led to post-traumatic stress disorder (PTSD), and her inability to thrive in life due to these factors. Ms. H argued that a more substantial discount should have been applied to her sentence to reflect these mitigating circumstances.

The court examined the evidence provided in various reports, including a psychologist's report, a s 27 report, and a proposed report from a forensic psychiatrist. These reports detailed Ms. H's traumatic childhood, characterized by sexual abuse, exposure to violence, and an unstable family environment. The court acknowledged that these factors had a significant impact on Ms. H's actions and mental health but found that the sentencing judge appropriately considered these issues in his sentencing decision. The court found no error in the judge's approach to the discount for mitigating factors, concluding that a single discount was appropriate rather than separate discounts for each report.

However, the court determined that the discount given by the sentencing judge was insufficient. The court found that a 25% discount was more appropriate, reflecting the severity of Ms. H's circumstances and their direct impact on her offending. Consequently, the appeal was allowed, and the original sentence was quashed. The court imposed a new sentence of four years' imprisonment, to be served concurrently on the charges of sexual violation, while maintaining the two-year sentences for the charges of indecency with a girl under 12, also to be served concurrently.

Orders