Dickinson v The Queen - [2018] NZHC 2280

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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-2018-463-000058

[2018] NZHC 2280

BETWEEN
GRAHAM ROBERT DICKINSON

Appellant

AND

THE QUEEN

Respondent

Hearing: 30 August 2018

Appearances:

A Schulze for the Appellant A D Hill for the Respondent

Judgment:

30 August 2018

ORAL JUDGMENT OF WYLIE J

Solicitors/counsel:
Lance Lawson, Rotorua
Crown Solicitors, Rotorua

DICKINSON v R [2018] NZHC 2280 [30 August 2018]

Introduction

[1]The appellant, Mr Dickinson, pleaded guilty to four charges, namely:

– indecent assault on a girl under the age of 12;1

– indecent assault on a young person;2 and

– indecent assault (x 2).3

[2] On 22 June 2018, Mr Dickinson was sentenced by Judge Cooper in the District Court at Rotorua to two years’ imprisonment.4 Special conditions were imposed. The Judge also ordered Mr Dickinson to make a reparation payment on account of emotional harm in the sum of $20,000.5

[3] Mr Dickinson appeals his sentence, arguing that it is manifestly excessive. There is no challenge, however, to the starting point adopted by the Judge, nor to the uplifts or discounts allowed by him. Nor is there any challenge to the special conditions or to the reparation payment. Rather, it is alleged that Judge Cooper erred in declining to impose a sentence of home detention.

[4]The Crown opposes the appeal.

[5] The sole issue is whether a sentence of home detention should have been imposed on Mr Dickinson.

Factual background

[6] The victim in relation to all of the offending is related by marriage to Mr Dickinson.

1      Crimes Act 1961, s 133(1)(b).
2      Section 134(3).
3      Section 135.
4      R v Dickinson [2018] NZDC 12827.
5 At [20].

[7] When the victim was a child, Mr Dickinson would take her swimming. On numerous occasions, he would grab her by the ankles and rub her feet against his erect penis.

[8] When the victim was 12 to 13 years old, Mr Dickinson rubbed his hands up and down her thighs and over her bottom. He also squeezed her bottom. This happened on one occasion only.

[9] In 2017, when the victim was 20 years old, she visited Mr Dickinson in a mobile home where he was then living. He persuaded her to get into his bed. He then put his hands between her legs and tried to force them open. He pushed his hand into her genital area, pushing against her vagina over the top of her clothing. The following morning, Mr Dickinson simulated sexual intercourse from behind the victim. She could feel his erect penis rubbing against her. He was making sexually explicit comments to her at the time.

District Court decision

[10] Judge Cooper set out the factual background to the offending, and he noted the severe effects the offending has had on the victim.6 He noted that there is no tariff…

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 Dickinson v The Queen

Details

AGLC: Dickinson v The Queen [2018] NZHC 2280
Case: [2018] NZHC 2280
Decision Date: 30 August 2018

CaseChat Overview and Summary

The appeal in Dickinson v The Queen was brought by Mr. Dickinson, who sought to challenge the two-year imprisonment sentence imposed by Judge Cooper in the Rotorua District Court. The sentence was given after Mr. Dickinson pleaded guilty to multiple counts of indecent assault involving a girl under the age of 12 and a young person. Mr. Dickinson's appeal focused on the Judge's decision to not impose a sentence of home detention instead, arguing that this decision was in error and that the sentence was manifestly excessive. The Crown opposed the appeal, arguing that Judge Cooper had exercised his discretion correctly.

The legal issue before the court was whether Judge Cooper erred in deciding that a sentence of home detention would not meet the sentencing needs of the case. This required the court to consider whether Judge Cooper had made an error in principle, failed to take into account a relevant matter, taken into account an irrelevant matter, or made a decision that was plainly wrong. The court had to consider the hierarchy of sentencing options provided by the Sentencing Act 2002, and whether the decision to impose imprisonment over home detention was justified.

Judge Wylie concluded that Judge Cooper did not err in his decision to impose a sentence of imprisonment. Wylie J noted that Judge Cooper had considered the purposes and principles of sentencing, including the need to denounce the offending, to hold Mr. Dickinson accountable, and to protect the community. Wylie J also highlighted that the further offending in 2017, when the victim was 20 years old, played a significant role in the Judge's decision against home detention. While Wylie J acknowledged that home detention can serve the purposes of denunciation and deterrence, the specific circumstances of this case, including the need for denunciation and the need to hold Mr. Dickinson accountable, made a sentence of imprisonment the most appropriate outcome. Therefore, the appeal was dismissed.

Orders