Logan v Police - [2013] NZHC 1631

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-114 [2013] NZHC 1631

BETWEEN BENJAMIN SCOTT LOGAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 24 June 2013

Appearances: H D M Lawry for Appellant
R Thomson for Respondent

Judgment: 1 July 2013

JUDGMENT OF LANG J

[on appeal against conviction and sentence]

This judgment was delivered by me on 1 July 2013 at 4.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

BENJAMIN SCOTT LOGAN v NEW ZEALAND POLICE [2013] NZHC 1631 [1 July 2013]

[1] Mr Logan was found guilty following a defended hearing in the summary jurisdiction of the District Court1 on a charge of indecently assaulting a girl under the age of 16 years.2 On 11 April 2013, Judge Treston sentenced him to six months home detention.3

[2] Mr Logan appeals to this Court against both conviction and sentence. He appeals against conviction on the basis that the overall conduct of the trial rendered it unfair. He contends that the sentence the Judge imposed was wrong in principle and manifestly excessive.

The charge

[3] The charge was laid under s 134(3) of the Crimes Act 1961 (“the Act”), which makes it an offence to do an indecent act on a person under the age of 16 years.

[4] There was no dispute in the present case that the complainant was 15 years of age at the time of the events giving rise to the charge. There was also no real dispute that Mr Logan had engaged in acts that, in the absence of consent, would amount to indecent assault.

[5] Mr Logan defended the charge in reliance on s 134A of the Act, which provides as follows:

134A Defence to charge under section 134

(1) It is a defence to a charge under section 134 if the person charged proves that,—

(a) before the time of the act concerned, he or she had taken reasonable steps to find out whether the young person concerned was of or over the age of 16 years; and

(b) at the time of the act concerned, he or she believed on reasonable grounds that the young person was of or over the age of 16 years; and

(c) the young person consented.

1      Police v Logan DC North Shore CRI-2012-044-000622, 7 December 2012.
2      Crimes Act 1961, s 134(3).
3      Police v Logan DC North Shore CRI-2012-044-000622, 11 April 2013.

(2) Except to the extent provided in subsection (1),—

(a) it is not a defence to a charge under section 134 that the young person concerned consented; and

(b) it is not a defence to a charge under section 134 that the person charged believed that the young person concerned was of or over the age of 16 years.

[6] Mr Logan’s defence was based on three propositions. First, he believed on reasonable grounds that the complainant was over the age of 16 years. Secondly, he had taken reasonable steps to find out whether that was the…

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 Logan v Police

Details

AGLC: Logan v Police [2013] NZHC 1631
Case: [2013] NZHC 1631
Decision Date: 1 July 2013

CaseChat Overview and Summary

In Logan v Police, the appellant was convicted and sentenced by a Judge alone in the District Court. He appealed both conviction and sentence to the High Court. The appeal against conviction was based on the proposition that the conduct of the trial rendered it unfair. The appeal against sentence was based on the proposition that the sentence was wrong in principle and manifestly excessive. The Court held that the appeal against conviction should be dismissed because the trial was not unfair. The Court held that the appeal against sentence should be allowed because a sentence of six months home detention was manifestly excessive. In its place the Court imposed a sentence of 250 hours of community work.

Orders