F v The King - [2024] NZHC 2383

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILD(REN).

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-133

CRI-2024-409-134 [2024] NZHC 2383

BETWEEN
F

Appellant

AND

THE KING

Respondent

Hearing: 22 August 2024

Appearances:

J D Lucas for Appellant

B W D Alexander for Respondent

Judgment:

23 August 2024

JUDGMENT OF EATON J

(appeal against sentence)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

F v R [2024] NZHC 2383 [23 August 2024]

Introduction

[1] Shortly before his scheduled trial, F1 pleaded guilty to two charges of sexual conduct with a child under 122 and two charges of indecent communication with a young person under 16.3

[2] On 8 May 2024 F was sentenced to two years and three months’ imprisonment by Judge Crosbie. He appeals that sentence. He says the sentence is manifestly excessive and that the appropriate sentence is home detention.

Background facts

[3] There are two victims of F’s offending. I will refer to them as victim one and victim two.

[4] Victim one was F’s step-daughter. In 2015, she was aged around seven years. F took her for a drive up the Port Hills and for a period allowed her to steer the car while sitting in his lap. At one point he pulled the car over to the side of the road, he took the victim’s hand and put her hand inside his pants. As soon as she realised what was happening, she withdrew her hand from inside his pants. She thinks her hand was inside his pants for about two seconds.

[5] In 2019, when aged about 11, victim one was at an address overnight where the appellant was residing. At around 4.00 am, F settled another child who was staying at the address and as he did so he asked victim one to go into the kitchen and speak with him. While in the kitchen, he took hold of her left wrist and attempted to put her hand down his pants. She resisted. He kept hold of her wrist and put his other hand under her clothing. She was wearing pyjama pants and underwear. He moved his hand underneath her clothing, touching her legs and stomach and he also moved his hand inside her underwear touching the exterior of her genitals. As he sexually assaulted the victim, he engaged her in conversation about plans for the day.

1      The appellant’s name is anonymized to protect the statutory suppression of the identities of the victims.
2      Crimes Act 1961, s 132(3) — maximum penalty 10 years’ imprisonment.
3      Section 124A — maximum penalty three years’ imprisonment.

[6] Those two incidents are reflected in the charges of sexual conduct with a child under 12 years.

[7] Victim two is the appellant’s biological daughter. Victim two went to stay with the appellant at a Christchurch address on an…

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 F v The King

Details

AGLC: F v The King [2024] NZHC 2383
Case: [2024] NZHC 2383
Decision Date: 23 August 2024

CaseChat Overview and Summary

In this appeal against sentence, F challenges the sentence imposed by Judge Crosbie, arguing that it is manifestly excessive and that the appropriate sentence is home detention. F pleaded guilty to two charges of sexual conduct with a child under 12 and two charges of indecent communication with a young person under 16. The victims were F's step-daughter and biological daughter. F's appeal raises issues about the application of the totality principle, the appropriateness of the sentence deduction for personal circumstances, and whether home detention is an appropriate sentence for the offending. The appeal was dismissed.

The court first considered whether the sentence was manifestly excessive and whether the totality principle should have been applied. The court held that the offending was very serious, involving two child victims, a relationship of trust, repeat offending, and skin-on-skin genital touching. The starting point and end sentence were within range, and the totality principle did not apply because the offences were considered separate and discrete.

The court then assessed the sentence deduction for personal circumstances. The court found that the Judge did not err in assessing the 10 per cent deduction for background factors and rehabilitative measures. The Neilson report did not establish a clear causal connection between F's childhood experiences and his offending.

Finally, the court considered whether home detention would be an appropriate sentence. The court held that the relevant sentencing purposes and principles in this case, involving child sexual offending with aggravating features, did not permit a sentence short of imprisonment. While rehabilitation might be better served in the community, the court found that the sentence imposed was not manifestly excessive.

Orders