OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-67
[2021] NZHC 1860
BETWEEN
GUANFA MEN
Appellant
AND
THE QUEEN
Respondent
Hearing:
19 July 2021
Appearances:
J N Olsen for the appellant
BCL Charmley for the respondent
Judgment:
22 July 2021
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 22 July 2021 at 3.30pm.
………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
J N Olsen, Barrister, Auckland J D Munro, Barrister, Auckland Crown Law, Wellington
MEN v R [2021] NZHC 1860 [22 July 2021]
[1] Guanfa Men appeals his conviction and sentence by Judge E M Aitken in the District Court at Auckland. After a week’s trial from 10 August 2020, by reserved decision(s) of 29 October 2020,1 the Judge found Mr Men guilty of 10 charges of indecent assault of a child under 12.2 In sentencing him on 5 February 2021, the Judge committed Mr Men to three years and two months’ imprisonment on those convictions.3
Background
[2] From April 2013 to April 2018, the victim’s parents employed Mr Men as a chef in their restaurant. During that time, Mr Men and his wife lived with the victim’s family in their home at Albany. There were occasions, during school holidays between May 2015 and May 2017, when the victim was said to be alone at the home with Mr Men — after the victim’s mother to take a younger child to daycare at about
10.00 am, and before Mr Men left for work at about 11.00 am.
[3] The Crown alleged, on one occasion, Mr Men invited the victim into her brother’s room. There, he pushed her onto the bed. He lifted her up and pulled off her pants. Mr Men touched the victim’s genitals, bottom and breasts. He grabbed her hand and put it into his underpants, touching his penis. He ceased on hearing the victim’s grandfather enter the house. In her evidential video interview, the victim referred to Mr Men wearing black underpants at the time of this incident. However, in her evidence to the District Court, she could not recall the colour of his underpants. On other occasions, Mr Men is alleged to have touched the victim’s genitals, breasts and bottom underneath her clothing. On two or three of those occasions, he is said to have grabbed the victim’s hand and made her touch his penis.
[4] The Crown’s evidence was Mr Men warned the victim not to tell anybody what had happened. The offending is said to have ceased when the victim told Mr Men she would tell her mother what he had done. The victim then was seven years old. Mr Men and his wife moved out of the victim’s family home in April 2018 for unrelated
1 R v Men [2020] NZDC 16542 [Conviction decision]. The Judge also gave a summary oral decision: R…
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.
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AGLC
Men v The Queen [2021] NZHC 1860
Case
[2021] NZHC 1860
Decision Date
CaseChat Overview and Summary
Guanfa Men appeals his conviction and sentence in the District Court at Auckland, where he was found guilty of 10 charges of indecent assault of a child under 12 years. Men argues the Judge erred in her assessment of the evidence, leading to a miscarriage of justice, and that his sentence was manifestly excessive. The Crown contends the appeal should be dismissed. The appeal against conviction focuses on whether the Judge’s assessment of the evidence was adequate. The appeal against sentence focuses on whether the sentence was manifestly excessive. The appeal against conviction is allowed in part. The convictions on five representative charges are quashed because the Judge’s reasons were insufficient to support those convictions. The appeal against sentence is dismissed because the sentence was not manifestly excessive. A new trial is ordered on the representative charges only.
The High Court of New Zealand, Auckland Registry, heard the appeal on 19 July 2021, with judgment delivered by Justice Jagose on 22 July 2021. Guanfa Men, the appellant, was represented by counsel J N Olsen, while the respondent, The Queen, was represented by BCL Charmley. The appeal against conviction is upheld in part, and a new trial is ordered on the representative charges only. The appeal against sentence is dismissed.