The appeal against conviction and sentence is dismissed. The appellant is to report to the Community Probation Service by 2pm on Friday 27 May 2011 to commence the sentence of home detention imposed by Judge McKegg.

REASONS OF THE COURT
(Given by Arnold J)

Introduction

Following a jury trial before Judge McKegg, the appellant was convicted on one count of sexually assaulting a girl under the age of 12. He was sentenced to five months home detention followed by post-detention conditions for six months.[1] He now appeals against both conviction and sentence.

Background

[1] R v Fenemor DC Nelson CRI-2008-042-2917, 7 July 2010.

The appellant is a music teacher. The victim, A, was a female student, aged seven at the time. A’s parents had engaged the appellant to teach A to play the guitar. The 30 minute lessons were held in the family room at their home. Initially A’s mother sat in on the lessons but, as A became more comfortable, she left A with the appellant and went about her daily chores.
After the lessons had been going for some time, A’s mother became suspicious of the appellant’s conduct with A. This came about because during the course of a lesson, A’s mother entered the family room quickly and noticed that the appellant was kneeling in front of A. The guitar was lying on top of A’s lap and the appellant was holding it from underneath, so that his right hand was between A’s legs and only his thumb on the front of the guitar was visible. As A’s mother approached, the appellant removed his hand.
A’s mother was concerned at what she had seen. However, she did not question either the appellant or A about it but rather, after discussion with her husband, decided to covertly record A’s next lesson with the appellant on their camcorder. A’s parents did this, but the recording (which we shall refer to as VR1) was inconclusive. It showed the appellant kneeling in front of A for a period holding the guitar on her lap but the position of his hand was obscured by a chair. Accordingly, A’s parents decided to record the appellant’s next lesson with A.
As Mr King for the appellant and Ms Feltham for the Crown agree that Dobson J gave an accurate account of what is depicted in that video recording (which we shall refer to as VR2), we set out his description in full:[2]
[16] Towards the end of the lesson, the respondent puts down his own guitar that he has been playing as an aid to…

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 Fenemor v The Queen

Details

AGLC: Fenemor v The Queen [2011] NZCA 206
Case: [2011] NZCA 206
Decision Date: 20 May 2011

CaseChat Overview and Summary

Warren Bruce Fenemor was convicted on one count of sexually assaulting a girl under the age of 12. The appellant, a music teacher, had been giving guitar lessons to the victim, a seven-year-old girl, at her home. After the victim's mother became suspicious of the appellant's conduct, she covertly recorded one of the lessons on video. The video, however, did not provide clear evidence of the appellant's hand position. A second video recording was made, which showed the appellant kneeling in front of the victim while holding a guitar on her lap. The appellant's right hand appeared to be supporting the top of the body of the guitar and was positioned on the inside of the upper part of the child's legs. The appellant was charged with two counts of indecent assault based on the two incidents recorded in the videos. The Crown also sought to introduce propensity evidence from two former students of the appellant, who alleged similar incidents of inappropriate conduct during music lessons.

The appellant appealed both his conviction and sentence. His counsel argued that the video and propensity evidence were wrongly admitted, the summing up contained several misdirections, the jury's verdict was unreasonable, and the refusal to allow the appellant to demonstrate how he held the guitar constituted a miscarriage of justice.

The Court of Appeal found that the video and propensity evidence were properly admitted as they were relevant to the context of the events leading up to the alleged offending and demonstrated a pattern of conduct. The Court also found that while there were some issues with the summing up, they did not amount to a miscarriage of justice. The Court rejected the argument that the jury's verdict was unreasonable, stating that there was sufficient evidence to support the conviction. Lastly, the Court found that the refusal to allow the appellant to demonstrate how he held the guitar did not result in a miscarriage of justice, as the appellant was able to describe the position without difficulty.

Regarding the sentence, the Court found that the appellant's sentence of five months of home detention, followed by post-detention conditions for six months, was not manifestly excessive, considering the serious breach of trust, the victim's youth and vulnerability, and the fact that the offending took place in the victim's home.

In conclusion, the Court of Appeal dismissed the appellant's appeal against conviction and sentence, and the appellant was to report to the Community Probation Service to commence the sentence of home detention imposed by Judge McKegg.

Orders