Gonzales v Police - [2013] NZHC 1691

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-000020 [2013] NZHC 1691

BETWEEN JONH GONZALES Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 4 July 2013

Appearances: N P Chisnall and M James for Appellant
S N Cameron for Respondent

Judgment: 4 July 2013

JUDGMENT OF LANG J [on appeal against sentence]

This judgment was delivered by me on 4 July 2013 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

JONH GONZALES v NEW ZEALAND POLICE [2013] NZHC 1691 [4 July 2013]

[1] Mr Gonzales pleaded guilty in the District Court to a charge of sexual violation by unlawful sexual connection. On 24 April 2013, Judge Burnett sentenced him to 21 months imprisonment. In doing so, the Judge rejected a submission for Mr Gonzales that a sentence of home detention was appropriate.1

[2] Mr Gonzales appeals to this Court against the sentence of imprisonment the Judge imposed. He contends that in fixing the sentence the Judge gave insufficient recognition to his previous good character. He also maintains that the Judge ought to have imposed a sentence of home detention rather than imprisonment.

The facts

[3] The events giving rise to the charge occurred after Mr Gonzales attended a party at the victim’s home address on the evening of 6 January 2013. He worked with both the victim and her partner, and was obviously on friendly terms with them at that time. At the end of the party, Mr Gonzales was in an intoxicated state. This prompted the victim and her mother to invite him to sleep overnight on a sofa in the lounge of their address. After Mr Gonzales had gone to sleep, the victim and her partner left the lounge, and went to the victim’s bedroom.

[4] At about 4 am the next morning, Mr Gonzales entered the victim’s bedroom. He found the victim and her partner sleeping on a double bed in that room. The victim was lying on her back wearing only a bra. The bra was unclasped, and her breasts were exposed. Mr Gonzales then lay down on the bed next to the victim, and began rubbing her breasts with his hand. As he was doing so, Mr Gonzales was using his other hand to rub his own penis. After a short time Mr Gonzales began rubbing the victim in the area of her vagina. As he did so, he continued to rub his own penis.

[5] Mr Gonzales then used his tongue to lick the victim’s vagina. This caused the victim to wake up, at which point Mr Gonzales stopped licking her vagina and began to kiss her on the lips. At that point the victim realised that the person kissing
her was Mr Gonzales, and not her partner. She immediately told Mr Gonzales to

1 R v Gonzales DC Hamilton CRI-2013-019-000148, 24 April 2013.

stop touching her. The victim’s partner also awoke at this point. Mr Gonzales then

got off the bed and left the house immediately.

[6]…

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: [2013] NZHC 1691
Decision Date: 4 July 2013

CaseChat Overview and Summary

Gonzales v Police involved an appeal against a sentence imposed by the District Court following a conviction for sexual violation by unlawful sexual connection. The appellant, Mr Gonzales, argued that the District Court Judge had insufficiently recognised his previous good character and should have imposed a sentence of home detention instead of imprisonment. The case was heard in the High Court of New Zealand, Hamilton Registry.

The court was required to decide whether the District Court Judge appropriately assessed the appellant's mitigating factors, such as his previous good character and the potential for restorative justice, in relation to the aggravating factors of the crime, including the nature of the offence and the impact on the victim. The court was also required to determine whether the Judge correctly concluded that the presumption in favour of imprisonment under section 128B of the Crimes Act 1961 was not displaced.

The High Court found that the District Court Judge appropriately considered the appellant's mitigating factors, such as his remorse and previous good character, in reducing the sentence from a starting point of 32 months to 21 months imprisonment. The High Court further determined that the Judge appropriately took into account the aggravating factors, such as the nature of the offence and the impact on the victim, in concluding that the presumption in favour of imprisonment was not displaced. The High Court found that the mitigating factors did not outweigh the aggravating factors in this case and that a sentence short of imprisonment would not adequately address the sentencing purposes of deterrence, denunciation, and holding the offender accountable for their actions and the harm caused to the victim.

The appeal against sentence was dismissed, and the 21-month imprisonment sentence imposed by the District Court was upheld.

Orders