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…
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- AGLC
- Mitchelmore v The Queen [2021] NZHC 3432
- Case
- [2021] NZHC 3432
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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