Dermer v The Queen - [2018] NZHC 1895

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2018-488-000015

[2018] NZHC 1895

BETWEEN
ADRIAN EDWARD JUNIOR DERMER

Appellant

AND

THE QUEEN

Respondent

Hearing: 18 July 2018

Appearances:

M Dyhrberg QC for the Appellant C A Anderson for the Respondent

Judgment:

30 July 2018

JUDGMENT OF HINTON J

This judgment was delivered by me on 30 July 2018 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
Marie Dyhrberg QC, Auckland
Marsden Woods Inskip & Smith, Whangarei

ADRIAN EDWARD JUNIOR DERMER v R [2018] NZHC 1895 [30 July 2018]

[1] This is an appeal against sentence, imposed in the District Court at Whangarei, by Judge D G Harvey, on 21 March 2018. Judge Harvey imposed an end sentence of two years and ten months’ imprisonment. As a result, Mr Dermer was not eligible for home detention, since the end sentence was above two years.

[2]Prior to sentencing, Mr Dermer pleaded guilty to the following charges:

(a) Sexual connection with a young person, s 134(1) of the Act 1961; Crimes

(b)

Threaten to do grievous bodily harm, s 306(1)(a) of the Act 1961;

Crimes

(c)

Two charges of assault with intent to injure, s 193 of the Act 1961;

Crimes

(d)

Threaten to kill, s 306(1)(a) of the Crimes Act 1961;

(e)

Assault with a weapon, s 202C of the Crimes Act 1961; and

(f) Two charges of male assaults female, s 194(b) of the Crimes Act 1961.

Facts

[3] Mr Dermer and the victim entered into a relationship in May 2013, ultimately separating in November 2015. At the time the relationship began, the victim was 14-and-a-half years old, while Mr Dermer was aged 16 years, turning 17 two months later. The victim turned 16 in late September 2014.

[4] Initially there were no problems in the relationship. However, starting in early 2014, Mr Dermer became violent towards the victim, punching and kicking her to the face and body, and making threats of violence against her. Mr Dermer also became controlling and manipulative over what the victim wore, who she saw, and arranged for her to pay her wages into his bank account. She had to ask him for any money.

[5] Mr Dermer was well aware when the relationship began, how old the victim was. The two of them engaged in sexual intercourse throughout the relationship, both while the victim was under the age of 16, and after.

[6] Sometime post-Christmas 2014, while Mr Dermer and the victim were living together at his mother’s house, Mr Dermer was pestering the victim for sex. She did not want to have sex and made that plain to him. In response, Mr Dermer grabbed the victim by the throat, with both hands and squeezed for approximately 15 seconds. He told the victim that he liked to see her being scared of him. Afterwards the victim’s throat was swollen and tender.

[7] In early 2015, the victim discovered she…

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 Dermer v The Queen

Details

AGLC: Dermer v The Queen [2018] NZHC 1895
Case: [2018] NZHC 1895
Decision Date: 30 July 2018

CaseChat Overview and Summary

This case involved an appeal by the appellant, Adrian Edward Junior Dermer, against the sentence imposed by the District Court. Dermer had been found guilty of multiple charges including sexual connection with a young person, threats to do grievous bodily harm, assault with intent to injure, threatening to kill, assault with a weapon, and male assaults female. The District Court Judge imposed an end sentence of two years and ten months’ imprisonment, which made Dermer ineligible for home detention. Dermer argued that the sentence was manifestly unjust as it was six months longer than what he believed to be appropriate. The legal issue before the court was whether the sentence imposed by the District Court was manifestly unjust and, if so, whether a different sentence should be imposed.

The High Court found that the District Court Judge had erred in treating the underage sex charge as the lead offence and in imposing a sentence for that charge. The Court held that the violence charges should have been considered as the starting point for sentencing, particularly the charge of threatening to kill. The Court determined that the starting point for the violence charges should be two years and nine months, and that an uplift of six months should be applied for the offence of sexual connection with a young person. The Court concluded that the appropriate sentence for Dermer would be two years and four months’ imprisonment, with various charges to be served concurrently. The appeal was allowed, and the sentence imposed by the District Court was quashed and substituted with the new sentence.

In conclusion, the High Court found that the sentence imposed by the District Court was manifestly unjust and substituted it with a sentence of two years and four months’ imprisonment. The Court found that the District Court Judge had erred in treating the underage sex charge as the lead offence and in imposing a sentence for that charge. The Court also found that the violence charges should have been considered as the starting point for sentencing, and that an uplift should be applied for the offence of sexual connection with a young person.

Orders