Mitchelmore v The Queen - [2021] NZHC 3432

TO PROTECT THE IDENTITY OF THE CHILD, PARTS OF THIS JUDGMENT HAVE BEEN REDACTED.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-000149

[2021] NZHC 3432

BETWEEN
KEITH MITCHELMORE

Appellant

AND

THE QUEEN

Respondent

Hearing: 9 December 2021

Appearances:

N A Pointer for the Appellant

S R Bicknell-Young for the Respondent

Judgment:

14 December 2021

JUDGMENT OF NATION J

Introduction

[1] The appellant, Keith Mitchelmore, pleaded guilty to a charge of doing an indecent act on a child under 12 years old.1 He was sentenced in the Christchurch District Court by Judge Garland to 17 months’ imprisonment.2 He appeals solely on the basis that sentence should have been commuted to home detention.

1 Crimes Act 1961, s 132(3); maximum penalty 10 years’ imprisonment.
2 R v Mitchelmore [2021] NZDC 20496.

MITCHELMORE v R [2021] NZHC 3432 [14 December 2021]

Background

[2] The victim in this case is [the child]. Between 2013 and 2018, the [child] would stay overnight with Mr Mitchelmore and his wife […]. On occasion, early in the morning the [child] would climb into bed with Mr Mitchelmore and his wife.

[3] The first instance of offending was when the victim was about six years old. Mr Mitchelmore began rubbing the victim on her back while she lay in bed next to him. He then rubbed the victim all over her body including her breasts, legs and vaginal area. The rubbing occurred on her bare legs and on top of her clothing. On one occasion, Mr Mitchelmore pushed the victims head down until she faced his stomach area.

[4] The incidents lasted for about a minute. They would occur while Mr Mitchelmore was on his own with the victim or when his wife [was] in the bed.

[5] Similar instances of offending occurred eight or nine times until the victim was eight years old.

[6] Mr Mitchelmore voluntarily approached the Police and admitted the offending. He said he gained sexual gratification from the interactions and was very remorseful for what he had put [the child] through.

District Court decision

[7] The Judge considered the aggravating features of Mr Mitchelmore’s offending were the age of the victim, the victim’s vulnerability given Mr Mitchelmore’s authority over her, the gross breach of trust, the intrusiveness and intensity of the act, the repeated instances of the offending and the harm done to the victim.

[8] The Judge noted there is no guideline judgment for offending of this kind. He went on to consider a number of cases referred to him by counsel.3 The Judge

3 Trim v Police HC Palmerston North AP44/01, 6 March 2002; R v M [2000] 2 NZLR 60 (CA); and
McKelvey v Police HC Palmerston North CRI-2004-454-69, 24 September 2004.

considered the salient factors in each of those cases and compared them to the present offending before setting the starting point of two years’ imprisonment.

[9] In 2004, Mr Mitchelmore was convicted on a charge of unlawful sexual connection…

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 Mitchelmore v The Queen

Details

AGLC: Mitchelmore v The Queen [2021] NZHC 3432
Case: [2021] NZHC 3432
Decision Date: 14 December 2021

CaseChat Overview and Summary

The appeal in Mitchelmore v The Queen was heard in the High Court of New Zealand, Christchurch Registry, and involved an appeal by Keith Mitchelmore against his sentence for doing an indecent act on a child under 12 years old. The appellant was sentenced to 17 months' imprisonment by the Christchurch District Court, which he appealed on the basis that the sentence should have been commuted to home detention. The High Court was required to determine if there was an error in the imposition of the sentence and whether a different sentence should be imposed. The court had to balance the purposes and principles of sentencing, particularly the need for denunciation, deterrence, and accountability, against the appellant's rehabilitative potential and other mitigating factors.

The High Court considered the appellant's submissions that the District Court Judge erred in placing excessive emphasis on deterrence and denunciation, and in not properly weighing other purposes and principles. The court examined whether the Judge's refusal to commute the sentence to home detention constituted an error. It noted the appellant's prior convictions, his rehabilitative potential, and the availability of community intervention. However, the court found that the appellant's history of offending, despite previous treatment, indicated a high risk of re-offending. The court also considered the appellant's remorse, but noted that this was adequately reflected in the discount applied for his early guilty plea. The court concluded that the need to denounce the appellant's conduct and deter similar offending outweighed the need for rehabilitation, and that the District Court Judge did not err in declining to commute the sentence to home detention.

The High Court dismissed the appeal, finding that the sentence of imprisonment was appropriate given the circumstances of the case. The court held that the District Court Judge had correctly exercised his discretion in determining that a sentence of imprisonment was the least restrictive outcome necessary to achieve the purposes and principles of sentencing. The appeal was dismissed, and the original sentence of 17 months' imprisonment was upheld.

Orders