H v The King - [2024] NZHC 1562

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2024-485-000039

[2024] NZHC 1562

BETWEEN
H

Appellant

AND

THE KING

Respondent

Hearing: 13 June 2024

Counsel:

K F Preston for Appellant

H M L Farquhar for Respondent

Judgment:

14 June 2024

JUDGMENT OF LA HOOD J

(Appeal against Sentence)

A refusal to commute a term of imprisonment to home detention

[1] Mr H, aged 38, appeals a decision to sentence him to imprisonment rather than home detention.1 He was sentenced to one year and eight months’ imprisonment on three charges of sexual connection with a dependent family member aged under 18.2

1 R v H [2024] NZDC 9183.
2 Crimes Act 1961, s 131(1). The maximum penalty is seven years’ imprisonment.

H v R [2024] NZHC 1562 [14 June 2024]

[2] The offending involved Mr H having sexual intercourse with both his stepdaughters. He had been married to their mother for 10 years and was a father figure to them. Mr H started sexually touching his eldest stepdaughter when she was aged 15 and had sexual intercourse with her on at least three or four occasions between the ages of 16 and 17, and once when she was aged 18. On the day of the final act of intercourse with his eldest stepdaughter, Mr H also had sexual intercourse with his youngest stepdaughter, aged 16, with the eldest stepdaughter present in the room.

[3] The sole issue on appeal is whether the sentence of imprisonment should have been converted to home detention. Mr H argues that the Judge placed excessive weight on community protection, denunciation and deterrence, and gave insufficient consideration to whether the purposes and principles of sentencing could be met by home detention.

[4] For the reasons that follow, I am not persuaded that the Judge erred in principle, or that a sentence of imprisonment was manifestly excessive. The Judge gave proper consideration to the relevant purposes and principles of sentencing, and was entitled to form the view that the aggravating features of the offending meant that the sentencing purposes of denunciation, deterrence, accountability and community protection required a term of imprisonment.

Background

[5] Until July 2022, Mr H was in a romantic relationship with the mother of the two complainants. The relationship spanned 12 years and they were married for 10 of them. Mr H’s two stepdaughters were approximately four and seven years old when his relationship with their mother started and he was like a father to them.

[6] Between 4 September 2018 and June 2019, when Mr H’s eldest stepdaughter was aged 15, he touched her in a sexual manner and digitally penetrated her vagina on at least two occasions. Between 4 September 2019 and…

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 H v The King

Details

AGLC: H v The King [2024] NZHC 1562
Case: [2024] NZHC 1562
Decision Date: 14 June 2024

CaseChat Overview and Summary

H, the appellant, appeals against the sentence of imprisonment imposed on him by the District Court for three charges of sexual connection with a dependent family member under the age of 18. The District Court sentenced him to one year and eight months' imprisonment. The sole issue on appeal is whether the sentence should have been commuted to home detention. H contends that the Judge placed excessive weight on community protection, denunciation and deterrence, and gave insufficient consideration to whether the purposes and principles of sentencing could be met by home detention.

The Court found that the Judge did not err in principle, or that the sentence was manifestly excessive. The Judge gave proper consideration to the relevant purposes and principles of sentencing and was entitled to form the view that the aggravating features of the offending meant that the sentencing purposes of denunciation, deterrence, accountability and community protection required a term of imprisonment. The Judge considered the pre-sentence report, which recommended imprisonment due to the high alcohol consumption of H, his inability to provide any reason or insight into the offending, his moderate to high likelihood of reoffending due to the length of the offending and his lack of insight, and the fact that H could not recall how the offending started. The Judge also considered H's rehabilitative needs and found that they could be addressed by programmes in prison, or in the community in accordance with the special release conditions imposed.

The Court found that the Judge was not required to recite every possible matter that could be weighed in H's favour. The Court also found that it was not an error of principle to fail to expressly refer to the impact of imprisonment on H's contact with his daughter. The Court was clearly aware of the issue, and it can be inferred that the Judge decided that it was not a weighty factor compared to the other matters she expressly noted. The Court was also unconvinced that there was any error of principle in emphasising the need for community protection despite the sexual offending risk assessment in the psychological report.

The Court concluded that it was clearly open to the Judge to conclude that the purposes of sentencing required a term of imprisonment. H grossly violated the trust of the complainants who had grown up with him in a paternal role. The offending was pre-meditated and persistent, starting when the first victim was 15, taking place over several years, and escalating at the end of that period by offending against the second victim when she was aged 16. H caused the victims significant harm and lacks insight into his offending and the harm he has caused. It follows that imprisonment was not a manifestly excessive outcome.

The appeal is dismissed.

Orders