Goldsbury v The King - [2023] NZHC 1069

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2022-063-2241

[2023] NZHC 1069

BETWEEN
KRIS GOLDSBURY

Appellant

AND

THE KING

Respondent

Hearing: 27 April 2023

Appearances:

A Cresswell for Appellant A Maino for Respondent

Judgment:

8 May 2023

JUDGMENT OF LANG J

[on appeal against sentence and refusal to grant name suppression]

This judgment was delivered by me on 8 May 2023 at 2.30 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Rotorua

GOLDSBURY v R [2023] NZHC 1069 [8 May 2023]

[1] Mr Goldsbury pleaded guilty to a representative charge of having sexual connection with a person under the age of 16 years.1 On 17 March 2023, Judge E P Paul sentenced Mr Goldsbury to two years eight months imprisonment.2 In addition, the Judge declined to grant an application for name suppression advanced by Mr Goldsbury, his wife and a company called Kidz World Limited (Kidz World).3 Mr Goldsbury appeals against sentence and also against the refusal to grant name suppression.

Background

[2] Kidz World operates daycare centres for children. Mr Goldsbury’s wife is the shareholder and director of the company and is responsible for the day-to-day operation of the daycare centres. At the time of the events giving rise to the charge Mr Goldsbury also assisted in their operation.

[3] The victim of Mr Goldsbury’s offending began attending one of the daycare centres when she was nine years of age. Thereafter she regularly attended after school programmes until she was 14 years of age. At that stage she became a teacher help and assisted in that capacity to run those programmes. As a result of her lengthy association with the daycare centres the victim became very close to Mr Goldsbury and his family. However, the relationship between them was entirely appropriate until she attained the age of 15 years.

[4] Matters changed after the victim turned 15 in February 2016. At that time she became an employee of Kidz World and worked in the daycare centres after she finished school on Monday to Thursday each week. She also worked at the childcare centres during school holidays. During this period the victim began to spend more time with Mr Goldsbury and his family outside business hours. At this stage Mr Goldsbury was 31 years of age. The victim helped Mr Goldsbury to carry out mechanical work on his cars and to build a pool area at his home. She also stayed overnight with Mr Goldsbury and his family at their home on several occasions.

1      Crimes Act 1961, s 134(1).
2      R v Goldsbury [2023] NZDC 5071.
3      R v Goldsbury [2023] NZDC 5121.

[5] In October 2016 Mr Goldsbury and the victim began to send personal text messages to each other by cellphone. Mr Goldsbury purchased a separate cellphone and SIM card that he used to contact the victim. This meant his regular cellphone number would not show on her phone. Mr Goldsbury began spending a great deal of time…

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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Details

Case: [2023] NZHC 1069
Decision Date: 8 May 2023

CaseChat Overview and Summary

In the case of Goldsbury v The King, Mr. Kris Goldsbury appealed both his sentence and the refusal to grant name suppression following his conviction for sexual connection with a person under 16 years of age. The appeal against the sentence focused on three main issues: the appropriateness of the starting point for sentencing, the discount for mental health issues, and the discount for the payment of emotional harm reparation to the victim. The appeal against the refusal to grant name suppression centred on whether the suppression of Mr. Goldsbury's name, as well as that of his wife and their company, would prevent undue hardship.

The Court found that the starting point for sentencing was too high, reducing it from five years to four years six months imprisonment. This reduction was based on the comparison with the case of R v H, where similar aggravating factors were present. The Court found no error in the discount applied for Mr. Goldsbury's mental health issues and the discount for the payment of reparation, as the level of discount was within the discretion of the sentencing judge. The sentence was ultimately reduced to two years five months imprisonment, with the appeal against the sentence being allowed.

Regarding the refusal to grant name suppression, the Court found that Mr. Goldsbury's wife and company would not suffer undue hardship if their names were published. The Court was satisfied that the publicity surrounding the case would not lead people to believe that the offending occurred while the victim was under the care of the daycare centres operated by Mr. Goldsbury's wife. The appeal against the refusal to grant name suppression was dismissed.

Orders