MW v Police - [2017] NZHC 3084

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2017-488-000031

[2017] NZHC 3084

BETWEEN
MW

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 7 December 2017

Counsel:

JA Young for Appellant JPR Scott for Respondent

Judgment:

12 December 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 12 December 2017 at 1 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:
JA Young, Whangarei. Crown Solicitor, Whangarei.

MW v POLICE [2017] NZHC 3084 [12 December 2017]

The case

[1] When he was 14, MW raped another teenager, S. A friend of MW sought to intervene. MW persisted. S was then 16. Judge G L Davis ordered MW come back to court within 12 months if required; in effect, “a good behaviour bond”.1 MW appeals. On his behalf, Ms Young contends the Judge erred not to discharge MW. In this context, a discharge means the charge “is deemed never to have been filed”.2 For the Police, Mr Scott contends MW is fortunate a more severe sentence was not imposed.

Background

[2] The Judge described the offending this way. I gratefully adopt His Honour’s summary:3

[MW] and some of his friends had been consuming alcohol around about 30 July 2015. They had also been smoking cannabis. He went to the victim’s house, who I will refer to as [S], and went to her bedroom window. He drew or attracted her attention and was invited in. [MW] at the time was extremely intoxicated as was some of his friends who also came into the room. Thereafter [MW] sought a kiss or something of that general nature from the victim. She replied, “No, you have [X]”, which I understand to be a reference to his then girlfriend. He persisted and sat down behind the victim. He grabbed her, wrapping his arms around her shoulders and began kissing her neck. She pushed him away. She continued to protest. In short, despite those protestations, he then jumped onto the bed and began to more aggressively ask for a kiss. Again he was rebuffed, he then rubbed her shoulders, pushed her down on the bed, pinned her down and to summarise the events thereafter and despite the protestations of the victim he raped her. He said to her something along the lines of, “I’ll fuckin G rape again”.

[3] As foreshadowed, one ingredient should be added to this narrative. A friend of MW’s was in the room while S was actively rejecting MW’s advances. He tried to get MW to stop, telling him: “I thought you were more of a man than this, you can clearly see [S] is crying and doesn’t want any of this”. MW persisted, referring to a “rape club”, S as a “little slut”, and telling her, “I’m going to rape you now”.

1      Police v MTW [2017] NZYC 462 at [71].
2      Oranga Tamariki Act 1989, s 282(2).
3      Police v MTW, above n 1, at [3].

[4] MW was charged on 20…

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 MW v Police

Details

AGLC: MW v Police [2017] NZHC 3084
Case: [2017] NZHC 3084
Decision Date: 12 December 2017

CaseChat Overview and Summary

MW appeals against his sentence for the rape of S, who was 16 at the time of the offence. MW was 14. His friends were present. They had been consuming alcohol and smoking cannabis. S actively resisted MW's advances. A friend of MW's tried to intervene. MW persisted. MW completed a SAFE programme. The Police and S did not support a discharge. MW contends the change of position by the Police prejudiced him, and the sentence is manifestly excessive. The appeal is dismissed.

MW could not have been prejudiced by the change in the Police position. He knew from the day after the family group conference the case might be transferred to the District Court. The change in Police position was communicated to MW before the SAFE programme began. The Youth Court was not bound to adopt the recommendation of the family group conference even if the Police position had remained unchanged.

The seriousness of the offence and its impact on the victim are powerful countervailing features to the mitigating factors. MW knew S did not consent. The offending involved an element of breach of trust. MW referred to "a rape club". The Court of Appeal has recognised the seriousness of the offending may be a reason by itself to transfer charges from the Youth Court to the District Court. Assessments of risk of re-offending have a short lifespan. MW has the benefit of no penalty beyond the fact of a Youth Court notation. The sentence is not manifestly excessive. Rather, MW was the beneficiary of a rehabilitative approach which might not have endured had MW been transferred to the District Court for sentencing in the adult criminal jurisdiction.

Orders