Heke v The Queen - [2012] NZHC 1003

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-6 [2012] NZHC 1003

RUSSELL ERIA HEKE
Appellant

v

THE QUEEN

Hearing: 14 May 2012

Appearances: JS Gurnick for Appellant
S Cameron for Respondent

Judgment: 15 May 2012

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 15 May 2012 at 4:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:
JS Gurnick, Public Defence Service, Hamilton: James.Gurnick@justice.govt.nz
S Cameron, Almao Douch, Hamilton: rgd@almaodouch.co.nz

HEKE V R HC HAM CRI-2012-419-6 [15 May 2012]

[1] Russell Eria Heke has appealed against a sentence of three years’ imprisonment imposed by Judge Thomas in the District Court at Hamilton following his guilty pleas to one count of sexual violation by unlawful sexual connection and one count of indecently assaulting a boy aged between 12 and 14 years. Mr Heke says that the sentence imposed was manifestly excessive in all of the circumstances.

The offending

[2] The 14-year-old victim in this case had been placed in the day-to-day care of the appellant where it seems it was felt he would receive support for his special needs resulting from attention deficit hyperactivity disorder and foetal alcohol syndrome.

[3] The summary of facts to which the appellant pleaded guilty indicates that the appellant and the victim returned home late in the evening to find that one of the other occupants of the home was using blankets normally used by the victim so the two shared the appellant’s bed. In the early hours of the morning, the victim woke complaining of chest pain. A short time later the appellant placed his hand under the victim’s pyjama pants and touched the victim’s penis. He then removed the victim’s penis from his pyjama pants, placed it in his mouth, and sexually violated the victim for approximately five minutes. The appellant stopped and the victim then went into the lounge and slept on the couch.

[4] Although it seems the victim remained living with the appellant for a further nine weeks before complaining about the events, there was no repetition of them during that period.

[5] When the appellant was spoken to by the Police he admitted his offending but could offer no explanation for it.

Personal circumstances of the appellant

[6] Mr Heke is 51 years old and has been married for approximately 22 years. The probation officer reports that although the events leading to the appellant’s

convictions placed a strain on the relationship, Mrs Heke continues to support her husband. Mr Heke is currently studying for a certificate in social sciences and at the time of his offending was undertaking casual work as a courier driver. To his credit, he is a volunteer with a local association assisting stroke victims. The probation officer reported that Mr Heke appeared to lead a very structured lifestyle as a student and a community volunteer.

[7] Although Mr Heke has previous convictions for dishonesty and driving with excess breach alcohol, the most recent of them is some ten…

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 Heke v The Queen

Details

AGLC: Heke v The Queen [2012] NZHC 1003
Case: [2012] NZHC 1003
Decision Date: 15 May 2012

CaseChat Overview and Summary

In Heke v The Queen, the appellant, Russell Eria Heke, challenged his sentence of three years' imprisonment for sexual violation and indecent assault against a 14-year-old boy. The court was tasked with determining whether the sentence was manifestly excessive, the appropriate starting point for sentencing, and if home detention should be considered as an alternative to imprisonment. The court considered the aggravating factors of the vulnerability of the victim and the gross breach of trust, as well as the mitigating factors of the appellant's remorse, good character, and early guilty plea. The court concluded that the starting point of four-and-a-half years was too high and set the starting point at four years. After applying discounts for remorse and the guilty plea, the court imposed a sentence of two-and-a-half years' imprisonment for the sexual violation charge and confirmed the concurrent sentence of 12 months for the indecent assault charge.

The appeal was allowed in part, and the sentence was amended to two-and-a-half years' imprisonment for the charge of unlawful sexual connection, with the concurrent sentence of 12 months for indecent assault remaining unchanged.

Orders