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Heng v The King

Heng v The King

Case [2023] NZHC 1789 10 July 2023

Appeal

Criminal Liability

Sentencing

Attempted Sexual Violation

Indecent Act on a Child

Indecent Communication with a Young Person

Criminal Law

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NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2023-485-29

[2023] NZHC 1789

BETWEEN
NAVY HENG

Appellant

AND

THE KING

Respondent

Hearing: 4 July 2023

Appearances:

A P Dye for the Appellant

A W M Britton for the Respondent

Judgment:

10 July 2023

JUDGMENT OF PALMER J

Solicitors
Public Defence Service, Wellington
Crown Solicitor, Luke Cunningham & Clere, Wellington

HENG v R [2023] NZHC 1789 [10 July 2023]

What happened?

[1] Mr Navy Heng, now aged 42, has been convicted of sexual offences against a child. They all relate to an incident on 7 June 2018. Mr Heng was in an intimate relationship with the complainant’s mother. The complainant was eight years old at the time. The complainant and her mother each have an intellectual disability. After the complainant had been put to bed around 8 pm, Mr Heng entered her bedroom, showed her a video on his phone of himself and her mother engaged in sexual activity, lay down next to the complainant, removed her pyjama pants, and touched her genitalia and other body parts with his hand. He told her to suck his penis and attempted to put his penis in her mouth.

[2] On 18 May 2021, after a judge-alone trial in the District Court at Wellington, Judge S M Harrop found Mr Heng guilty of sexual violation by unlawful sexual connection by introducing his penis into her mouth, committing an indecent act on a child under 12 by touching her genitalia, and indecent communication with a young person under 16 by exposing her to indecent material on the video.1 On 29 November 2021, the Judge sentenced Mr Heng by setting a starting point of seven years’ imprisonment for all aspects of the incident and all three offences.2 He applied a discount of 18 months for the period of three-and-a-half years that Mr Heng had spent on bail, his previous good character, and the impact of imprisonment on his young daughter.3 This resulted in an overall end sentence of five and a half years’ imprisonment, with sentences of three years’ and one year’s imprisonment for the indecent act and indecent communication offences to be served concurrently. He was automatically registered on the child sex offender register.

[3] Mr Heng appealed against his conviction. On 2 September 2022, in the High Court at Wellington, Cull J held that there was overwhelming evidence from the complainant of attempted sexual violation but was not satisfied beyond reasonable doubt that Mr Heng did place his penis in her mouth.4 Accordingly, the Judge substituted Mr Heng’s conviction for sexual violation with one of attempted sexual

1 R v Heng [2021] NZDC 8934.
2

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 Heng v The King

Details

AGLC: Heng v The King [2023] NZHC 1789
Case: [2023] NZHC 1789
Decision Date: 10 July 2023

CaseChat Overview and Summary

Navy Heng appealed against his sentences for sexual offences against a child, specifically challenging the sentence for attempted sexual violation by penile penetration of the mouth. Heng argued that the starting point of five years’ imprisonment was manifestly excessive, and that the sentencing judge failed to appropriately weigh certain sentencing factors. The Crown maintained that the starting point was appropriate and the sentence was within the available range.

The court held that the starting point of five years was appropriate, as the Court of Appeal’s guidelines for sentencing for rape also apply to penile penetration of the mouth. The court found that the sentencing judge had correctly assessed the seriousness of the offending by weighing all the facts, and had not erred in considering the analogous cases. The court also found that the judge had appropriately weighed the relevant sentencing factors and that the overall end sentence was not manifestly excessive.

The court did find that the starting point of three years for the indecent act offence was too high and substituted it with a concurrent sentence of 20 months’ imprisonment. This did not affect the overall end sentence for all the offences. The appeal for the sentences for attempted sexual violation and indecent communication with a young person were dismissed. The appeal for the sentence for committing an indecent act on a child was allowed and the sentence was substituted.

Orders