Heng v The the Queen - [2022] NZHC 2232

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

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] 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-2021-485-96

[2022] NZHC 2232

BETWEEN
NAVY HENG

Appellant

AND

THE QUEEN

Respondent

Hearing: 22 June 2022

Appearances:

A Dye and C Gisler for Appellant B Thompson for Respondent

Judgment:

2 September 2022

JUDGMENT OF CULL J

[1] Navy Heng was convicted and sentenced, following a Judge alone trial on three charges of sexual offending with a child under 12.1 He was sentenced to five years and six months’ imprisonment on the most serious offence of sexual violation by unlawful sexual connection,2 with concurrent sentences of three years’ imprisonment

1 R v Heng [2020] NZDC 8934.
2 Crimes Act 1961, ss 128(1)(b) and 128B; maximum penalty of 20 years’ imprisonment.

HENG v R [2022] NZHC 2232 [2 September 2022]

on the charge of indecent act on a child under 123 and one year’s imprisonment on the charge of indecent communication with a young person under 16.4

[2] Mr Heng appeals his conviction and in the event that the conviction appeal succeeds, his sentence.

Background

The offending

[3] The following facts were accepted by the Judge at trial. Mr Heng was in an intimate relationship with the complainant’s mother. One night, once the complainant, aged eight years, and her sister had been put to bed around 8 pm, Mr Heng entered the complainant’s bedroom. He showed her a video on his mobile phone of himself and her mother engaged in sexual activity. He then proceeded to lay down next to her and touch her genitalia as well as other parts of her body with his hands. He also asked the complainant if she would like to marry him. He then told her to suck his penis, which she declined to do. It was alleged that Mr Heng then put his penis in her mouth. He told her not to call for her mother.

[4] Mr Heng denied the offending. He said he never entered the complainant’s bedroom, nor did he show the complainant any videos. He said he had left the phone containing such videos at home and had a different mobile phone with him that night.

The complainant’s disability

[5] Both the child complainant and her mother have an intellectual disability. The complainant was aged 11 at the time of trial. The complainant was assessed by a psychologist as having an Intellectual Development Disorder (Intellectual Disability) of mild severity. A further assessment of both the complainant and her mother was undertaken by speech-language therapists and communication assistants, who recommended the involvement of communication assistants for both witnesses during

3…

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 the Queen

Details

AGLC: Heng v The the Queen [2022] NZHC 2232
Case: [2022] NZHC 2232
Decision Date: 2 September 2022

CaseChat Overview and Summary

Navy Heng was convicted and sentenced, following a Judge alone trial, on three charges of sexual offending with a child under 12. He appeals his conviction and sentence. The main issue on appeal is whether the trial Judge erred in finding that there was sexual connection between Mr Heng's penis and the complainant's mouth. The Court found that the trial Judge erred in accepting the complainant's evidence that there was a sexual connection between Mr Heng's penis and her mouth. There was a persistent questioning by the interviewer, not merely repeating what the child had said but putting her own interpretation of what she understood the child was saying, without any clarification. This was contrary to the ruling in R v E. Reliance therefore on the wording used by the interviewer, the words used by the complainant without further explanation, and the repetition of the interviewer's views cast doubt on whether there had been sexual connection between the penis and mouth, based on the complainant's EVI alone. The appeal is allowed in respect of the conviction for sexual violation by unlawful sexual connection. The Court directs that a judgment of conviction for attempted sexual violation by unlawful sexual connection be substituted for the offence of sexual violation by unlawful sexual connection. The appeal against the two convictions of doing an indecent act on a child under 12, and having an indecent communication with a young person under 16, is dismissed. Under s 251(3) of the Criminal Procedure Act, the sentence is remitted to the District Court to be imposed on the substituted conviction for attempted sexual violation by unlawful sexual connection.

Orders