de Kwant v The Queen - [2019] NZSC 79

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IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 8/2019
[2019] NZSC 79

BETWEEN	RENE MISCHELLE DE KWANT Applicant
AND	THE QUEEN Respondent

Court:	O’Regan, Ellen France and Williams JJ
Counsel:	A M S Williams for Applicant K Peirse‑O’Byrne for Respondent
Judgment:	24 July 2019
Reissued:	25 July 2019

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

The applicant seeks leave to appeal against the decision of the Court of Appeal dismissing his appeal against the imposition of a sentence of preventive detention.[1]

Background

[1]De Kwant v R [2018] NZCA 600 (Asher, Lang and Moore JJ) [CA judgment].

The background to the application is as follows. Mr de Kwant was sentenced to nine years’ imprisonment for sexual offending in 2000. There were three complainants all of whom were young children. The offending took place over the period from 1990 to 1998 and included sexual violation by digital penetration, rape by anal penetration and inducing indecent acts.
After the 2000 offending was disclosed, Mr de Kwant attended a STOP programme. Whilst in prison he undertook what the Court of Appeal described as “extensive therapy”.[2] He was released on parole in 2006. The current offending took place over an 18 month period from June 2015 to January 2017. It involved indecent assaults of a friend’s son (aged between eight and ten years old) whom he cared for on numerous occasions.[3] The offending came to light in February 2017 when the boy confided in his mother after Mr de Kwant had organised a tramping trip for himself and the boy.
[2]At [22]. He completed the Kia Marama course.
[3]Mr de Kwant pleaded guilty to a representative charge of indecent assault on a boy under 12.
In sentencing Mr de Kwant in September 2017, Mander J identified the appropriate finite sentence (following an early guilty plea) as three years and seven months’ imprisonment.[4] Preventive detention with a minimum period of imprisonment of five years was imposed. Mr de Kwant appealed to the Court of Appeal against sentence.
[4]R v de Kwant [2017] NZHC 2291.
In dismissing the appeal, the Court of Appeal first addressed the argument made by Mr de Kwant that the sentencing Judge had not recognised the “comparatively minor” nature of the current offending.[5] The Court took the view that while this offending was “considerably less serious” it was not minor (repeated masturbation of a young child over an 18 month period) and the Judge had not made any error in…

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 de Kwant v The Queen

Details

AGLC: de Kwant v The Queen [2019] NZSC 79
Case: [2019] NZSC 79
Decision Date: 24 July 2019

CaseChat Overview and Summary

The Supreme Court of New Zealand presided over an application for leave to appeal by Rene Michelle de Kwant against the Court of Appeal's decision dismissing his appeal against the sentence of preventive detention imposed on him. The applicant argued that a miscarriage of justice had occurred because the sentence was manifestly excessive and overly punitive, and that the Court of Appeal had not correctly applied the principles in R v Parahi, which suggested that preventive detention in cases involving less serious indecencies should be imposed in exceptional circumstances. The Court of Appeal had rejected the applicant's arguments and dismissed the appeal.

The primary legal issues in the case were whether the Court of Appeal had erred in its assessment of the seriousness of the current offending, the risk of reoffending, and the appropriateness of imposing preventive detention. The applicant argued that the current offending was comparatively minor, that the risk of reoffending had been overstated, and that preventive detention should not have been imposed in his case.

The Supreme Court dismissed the application for leave to appeal. The Court found that the Court of Appeal had not erred in its assessment of the current offending as not minor, and that the experts' reports and facts confirmed the risk of reoffending. The Court also found that the Court of Appeal had not erred in its assessment of the applicant's current efforts at rehabilitation, and that there was no appearance of a miscarriage of justice in the Court of Appeal's assessment of the case. The Court held that no question of general or public importance arose in the case, and that the Court of Appeal's decision was not in the category of cases in which the Supreme Court would grant leave on a sentencing matter.

The Supreme Court dismissed the application for leave to appeal, and no further appeal lies to the Privy Council.

Orders