NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE
CRI-2022-418-04
[2022] NZHC 2797
BETWEEN
TIMOTHY DISCIPLE
Appellant
AND
NEW ZEALAND POLICE
Respondent
CRI-2022-418-05
BETWEEN
TIMOTHY DISCIPLE Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing:
8 September 2022
Appearances:
M Zintl for Appellant
C J Boshier for Respondent R Stewart for Stuff Limited
Judgment:
28 October 2022
JUDGMENT OF EATON J [REDACTED]
This judgment was delivered by me on 28 October 2022 at 10 am pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
DISCIPLE v NZ POLICE [2022] NZHC 2797 [28 October 2022]
Introduction
[1] Timothy Disciple pleaded guilty to one charge of indecently assaulting a boy aged 12 to 16 years,1 three charges of indecently assaulting a child under 12 years of age (one representative),2 two charges of indecent assault on a young person under the age of 163 and one charge of indecent assault.4 Mr Disciple was sentenced by Judge Garland on 23 June 2022 to two years and five months’ imprisonment.5 The Judge declined an application for permanent name suppression and for suppression of the fact that the offending took place in the Gloriavale community, but ordered suppression of the familial links between Mr Disciple and the victims. After the sentencing, on 10 August 2022, Judge Garland made a final suppression order of the portions of the summary of facts relating to Victims One and Three.
[2] Mr Disciple appeals his sentence and the refusal to order permanent name suppression.
Facts
[3]The following facts are taken from the summary of facts.
[4] The appellant is a 41-year-old man who lived in the Gloriavale Christian community. There are five victims to his offending, all of whom lived in the Gloriavale community at the time of the offending.
[5] […]
[6] In December 2005, Victim Two and her family travelled by van with Mr Disciple and his family. The families were on holiday together. Victim Two was 12 years old at the time. Mr Disciple was 24 years old and was recently married. Mr Disciple and Victim Two sat in the back row of the van. Mr Disciple placed his hand on the victim’s lower back and bottom over her clothing and squeezed and rubbed
1 Crimes Act 1961, s 140A(1): maximum penalty seven years’ imprisonment.
2 Section 132(3): maximum penalty 10 years’ imprisonment.
3 Section 134(3): maximum penalty seven years’ imprisonment.
4 Section 135: maximum penalty seven years’ imprisonment.
5 Police v Disciple [2022] NZDC 11586.
her. Victim Two told her parents she was feeling car sick in order to get away from Mr Disciple.
[7] Victim Three was then asked to sit in the back seat next to Mr Disciple. She was 10 years old at the time. Mr Disciple placed his right arm around her shoulder and his left hand on her knee. He…
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.
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AGLC
Disciple v Police [2022] NZHC 2797
Case
[2022] NZHC 2797
Decision Date
CaseChat Overview and Summary
Timothy Disciple appeals both his sentence and the refusal to order permanent name suppression. The appeal concerns five charges of sexual offending against children, which occurred over a period of about 18 months. The offending was discovered when the offender confessed to the police, after 15 years, and after two of the victims had made disclosures. The offender was sentenced to two years and five months’ imprisonment and the Judge declined to order permanent name suppression. The offender argues that his sentence should have been less and that his name should have been suppressed. The Crown submits that the sentence was appropriate and that suppression was not warranted. The court considers the offender’s sentence first. The starting point for the offending was too high and should have been three years and six months’ imprisonment. The offender is entitled to a ten per cent discount for co-operation with authorities and a five per cent discount for previous good character. The total allowable discount is 55 per cent of the starting point. The sentence should be 21 months’ imprisonment. The court considers the suppression appeal next. The threshold for extreme hardship is very high. The offender has not demonstrated that publication of his name would cause extreme hardship to him or his family, or cause undue hardship to the victims by identifying them. The appeal against sentence is allowed and the sentence is quashed and substituted by a sentence of 21 months’ imprisonment. The appeal against the refusal to grant permanent name suppression is dismissed.