Box v The King - [2023] NZHC 3759

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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-2023-463-83

[2023] NZHC 3759

BETWEEN
MELVIN ANTHONY BOX

Appellant

AND

THE CROWN

Respondent

Hearing: 28 November 2023

Appearances:

M Simpkins for the Appellant

A McConachy for the Respondent

Judgment:

18 December 2023

JUDGMENT OF HARVEY J

[on appeal against sentence]

This judgment is delivered by me on 18 December 2023 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors/Counsel:
Simpkins Legal Limited, Rotorua
Gordon Pilditch, Crown Solicitors Office, Rotorua

BOX v THE CROWN [2023] NZHC 3759 [18 December 2023]

Introduction

[1] On 9 August 2023, Melvin Box was sentenced in the Rotorua District Court to two years, three months’ imprisonment on a representative charge of sexual intercourse with a girl under 12.1 He now appeals his sentence on the basis that a discount for cultural matters should have been granted. The appellant argued that if a discount had been provided, his sentence would have reduced to a term of imprisonment of two years or less. If that had occurred, then the appellant submitted a sentence of home detention should have been imposed.

The offending

[2] The offending occurred between 1978 and 1982 in and around Taupō. At the time, the victim was between six and nine years of age while the appellant was between 14 and 18 years old. He lived in Taupō with his parents at a family homestead. The victim and the appellant are known to each other. The first sexual offence with the victim took place when she was six and the appellant was between 14 and 15. He had sexual intercourse with the victim who hid underneath the bed afterwards before being found by an aunt.

[3] The second act occurred when the victim was seven and the appellant was between 15 and 16 at Four Mile Bay, Taupō. The appellant had sexual intercourse with the victim in the back of a van.

[4] The third occasion was when the victim was nine and the appellant was between 17 and 18 and both were at an address in Taupō. The appellant drove the victim to a bus stop near the Taupō rubbish tip and had sexual intercourse with her.

District Court decision

[5] The Judge set a starting point of five years’ imprisonment, with reference to sentencing tariffs contemporaneous with the offending. He also took account of the aggravating factors of the victim’s vulnerability, the repeated instances of offending, some degree of premeditation and breach of trust.

1 R v Box [2023] NZDC 17077.

[6] A 30 per cent discount was applied to recognise the offending was committed when Mr Box was 14–18 years old, which reduced his culpability. A good character discount of 15 per cent was granted. A guilty plea discount of 10 per cent…

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 Box v The King

Details

AGLC: Box v The King [2023] NZHC 3759
Case: [2023] NZHC 3759
Decision Date: 18 December 2023

CaseChat Overview and Summary

Melvin Box appealed his two years, three months' imprisonment sentence for sexual intercourse with a girl under 12. He argued that a discount for cultural factors should have been granted, which would have reduced his sentence to two years or less, warranting a home detention sentence instead. The District Court Judge had considered a cultural report, which described Box's upbringing as being exposed to a dysfunctional and culturally deprived home life without the benefit of emotional, social or psychological stability. The Judge, however, found no connection between the lack of emotional support in Box's early years and the sexual abuse of the victim and accordingly, no discount was granted.

The High Court considered whether the District Court Judge had erred in not granting a discount for cultural factors. The Court noted that the cultural report writer concluded that Box's childhood was "unremarkable" in some respects, but his unresolved emotional grief surrounding his sense of disconnection, despondency, resentment and anger as a result of feeling rejected by his mother "may provide a causative link" between his background and his teenage offending. However, the Court found that this set of experiences did not necessarily translate into the kinds of factors relevant to colonisation arguments in the context of discounts for cultural background considerations. The Court also found that the principles of deterrence and denunciation were important considerations in the context of this offending against a vulnerable child who was in the care of someone known to her and who took advantage of that vulnerability on more than one occasion over a number of years. Accordingly, the Court found no error in the Judge's approach and dismissed the appeal against sentence.

Orders