King v Police - [2012] NZHC 1922

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

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-45 [2012] NZHC 1922

BETWEEN LESLEY KING Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 31 July 2012

Counsel: S J Gill for appellant
M J Ferrier for respondent

Judgment: 2 August 2012

RESERVED JUDGMENT OF DOBSON J

[1] After a defended hearing before Judge T J Broadmore in the Lower Hutt

District Court on 16 November 2011, the Judge delivered a judgment on 2 December

2011 finding four charges of indecent assault proven against Mr King. The Judge sentenced Mr King on 27 April 2012 to four months’ community detention, with a curfew to the residential address between 7pm and 6am, together with 18 months’ intensive supervision. Special conditions included counselling and non-association with the complainant and people under the age of 16 years.

[2] Mr King now appeals against both his convictions and the sentence imposed.

KING v NEW ZEALAND POLICE HC WN CRI 2012-485-45 [2 August 2012]

[3] The complainant in the four charges was a young woman who turned 16 during the period to which the charges relate. She is the daughter of Mr King’s current partner so that he stands in a stepfather-type relationship with her.

[4] The first charge related to an incident between the beginning of 2011 and mid March that year. The complainant described Mr King approaching her from behind in the kitchen of their home. She complained that he placed his hands on her hips and moved them up to her stomach towards her breasts over her clothes. She pulled his hands away and the touching stopped at that point.

[5] The second charge relates to an alleged touching between mid March and the end of April 2011. On this occasion, the complainant was in her bedroom and Mr King came in, with the complainant asking him to leave. While they were facing each other, Mr King hugged the complainant and as he did so he touched her legs on the back of her thighs, moving his hands up to touch her buttocks over her clothes.

[6] The third charge related to an alleged incident on 2 May 2011. On that occasion, the complainant left her bedroom to get a drink of water and returned there. Mr King followed her into her bedroom uninvited, and when she turned around to face Mr King he hugged her, placing one hand on her bottom and moved his other hand up her chest towards her breasts. Believing that he was going to touch her breasts, the complainant pushed his hand away.

[7] The final charge related to an incident on 24 May 2011. Mr King was lying on a mattress in the lounge of their home and asked the victim to lie down with him. The complainant refused and started to walk away when Mr King grabbed her by the back of her clothes…

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 King v Police

Details

AGLC: King v Police [2012] NZHC 1922
Case: [2012] NZHC 1922
Decision Date: 2 August 2012

CaseChat Overview and Summary

In the case of King v Police, the appellant, Mr King, appealed against both his convictions and the sentence imposed by the Lower Hutt District Court. Mr King was found guilty of four charges of indecent assault against a young woman, who was the daughter of his current partner. The court had to decide whether the prosecution had proven the necessary elements for the first three charges of indecent assault and whether the court had to consider the possibility of Mr King's belief in consent for the fourth charge.

The court found that there was no deficiency in the trial judge's reasoning in establishing the requisite elements for the first three offences. The court also found that the trial judge had rejected the possibility of Mr King's belief in consent for the fourth charge. However, the court dismissed the appeal against all of the convictions.

The court found that the starting point for the sentence, including the uplift, was not in error. However, the court found that the trial judge had not taken into account the period Mr King had spent in custody on remand. The court allowed the appeal against sentence and substituted a period of two months and two weeks' community detention on each of the convictions to be served concurrently. The terms and conditions of the sentence, as imposed by the sentencing judge, remained in all other respects.

Orders