Dean v The Queen - [2021] NZHC 2334

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2021-419-51

[2021] NZHC 2334

BETWEEN
LANCE NIGEL DEAN

Appellant

AND

THE CROWN

Respondent

Hearing: 3 September 2021 (Via VMR and telephone)

Appearances:

T Sutcliffe for the Appellant B Harris for the Respondent

Judgment:

7 September 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 7 September 2021 at 4:00pm

Registrar/Deputy Registrar

DEAN v THE CROWN [2021] NZHC 2334 [7 September 2021]

[1] Mr Dean pleaded guilty to two representative charges of indecent communication with a young person under 161 and a charge of doing an indecent act on a young person under 16.2 Judge R L B Spear sentenced him, on 1 July 2021 in the District Court at Hamilton, to 11 months’ imprisonment with release conditions for six months following expiry of the sentence.

[2] Mr Dean appeals against sentence. He says the starting point adopted by the Judge was too high and that in any event he should have been sentenced to home detention rather than imprisonment. If he is sentenced to home detention he says he should not be placed on the Child Sex Offender Register.

Background

[3] At the time of the offending, Mr Dean was 41 years old. The complainant was 15 years old.

[4] From the start of October through to early November 2020, Mr Dean sent the complainant messages, initially through Facebook Messenger and then by text message. These texts were initially confined to general conversation but became sexual in nature. Mr Dean told the complainant she was sexy and made him happy. On one occasion, when Mr Dean saw the complainant with a friend, he messaged her saying her “ass looks so hot right now” and that he was “playing with his cock”. Mr Dean sent further messages telling the complainant he wanted to grab her “ass or tit” next time he saw her, to which she responded “okay baby”. Mr Dean messaged the complainant that “pussy might be too much for you at present … just about to have a wank”. Mr Dean’s messages gave rise to the first representative charge of indecent communication with a young person.

[5] The complainant sent Mr Dean photos of her breasts and vagina and videos of her performing sexual acts on herself. Mr Dean sent the complainant photos of his penis and videos of him performing sexual acts on himself. Mr Dean’s communications were the basis of the second representative charge.

1 Crimes Act 1961, s 124A. Maximum penalty: three years’ imprisonment.
2 Crimes Act 1961, s 134(3). Maximum penalty: seven years’ imprisonment.

[6] Mr Dean sent a message to the complainant asking if he could touch her body over her clothes if they were alone. She replied it was fine as she wanted him to touch her. The complainant then visited Mr Dean’s home. She walked past Mr Dean after swimming in the pool. As she did so, Mr Dean touched her…

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 Dean v The Queen

Details

AGLC: Dean v The Queen [2021] NZHC 2334
Case: [2021] NZHC 2334
Decision Date: 7 September 2021

CaseChat Overview and Summary

The appeal by Lance Nigel Dean against his sentence imposed by the District Court was heard in the High Court of New Zealand. Mr Dean had pleaded guilty to charges of indecent communication with a young person under 16 and doing an indecent act on a young person under 16. The District Court sentenced him to 11 months' imprisonment, with release conditions for six months following the expiry of the sentence. Mr Dean appealed the sentence, arguing that the starting point was too high and that he should have been sentenced to home detention rather than imprisonment. The court was required to determine whether the end sentence of 11 months' imprisonment was manifestly excessive and whether home detention was the appropriate sentence. The court concluded that the end sentence was not manifestly excessive, and while the judge did not adequately consider the statutory purposes when deciding against home detention, the overall sentence was not manifestly excessive. The court found that home detention would be the least restrictive option and substituted a sentence of three months' home detention. The court also ordered Mr Dean to be registered on the Child Sex Offender Register, finding that he posed a real and genuine risk to the sexual safety of children generally. The appeal was allowed, and the sentence was quashed, with a sentence of three months' home detention substituted. The court also ordered Mr Dean to be registered on the Child Sex Offender Register and comply with the reporting obligations of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016.

Orders