N v The King - [2023] NZHC 2945

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-104

[2023] NZHC 2945

BETWEEN
N

Appellant

AND

THE KING

Respondent

Hearing: 17 October 2023

Appearances:

S Mills for Appellant

A Gordon for Respondent

Judgment:

20 October 2023

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by Justice Lang On 20 October 2023 at 3.00 pm
Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel: Gordon Pilditch, Rotorua
Lance Lawson, Rotorua South

N v R [2023] NZHC 2945 [20 October 2023]

[1] N pleaded guilty in the District Court to two charges of indecently assaulting his teenage daughters. One of the charges was laid as a representative charge on the basis that N had indecently assaulted one of his daughters on approximately six occasions. On 8 September 2023, Judge M A MacKenzie sentenced N to two years three months imprisonment on all charges.1

[2] N appeals against sentence. He contends the Judge adopted a starting point for the sentence that was too high and failed to give him adequate discount to reflect mitigating factors. He contends the end sentence should have been one of two years imprisonment or less. Had that been the case, he contends the sentence should have been converted from a sentence of imprisonment to one of home detention.

The offending

[3] The first charge relates to a single incident that occurred after N arrived home in an intoxicated state on 20 April 1980. He entered the bedroom of his 15-year-old daughter who was asleep at the time. He got into her bed and held her hands up over her head to prevent her from resisting. He then restrained her arms with one of his hands whilst he put his other hand up her nightie. He then began touching his daughter’s body and fondling her breasts. He also put his fingers inside her underwear and into her genitalia. Whilst this was occurring, he was saying things like “you know you want it tonight” and “I’m going to have you”.

[4] The victim screamed out to her brother, who was sleeping in a neighbouring bedroom. At this point N placed his forearm over his daughter’s mouth to stop her from screaming. When his son entered the room N told him to leave and that this was none of his business. His son then left the room.

[5] When N eventually left his daughter’s bedroom she jumped through her bedroom window and went to a neighbour’s address. The police were called but, for reasons unknown, the police did not take any further action in relation to this incident. When the police subsequently discussed the incident with N, he denied that it had happened. He said only that he had slapped his daughter during an argument.

1 R v [N] [2023] NZDC 19794.

[6] The second, and representative, charge relates to another daughter who was aged between 13 and 16 years at the time of the offending. Between 1982 and 1984 N went…

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 N v The King

Details

AGLC: N v The King [2023] NZHC 2945
Case: [2023] NZHC 2945
Decision Date: 20 October 2023

CaseChat Overview and Summary

The High Court of New Zealand, Rotorua Registry, heard an appeal by N against his sentence for indecently assaulting his teenage daughters. N had pleaded guilty to two charges of indecent assault. The first charge related to an assault on a 15-year-old daughter in 1980, involving physical restraint, skin-on-skin contact, and digital penetration. The second charge was a representative charge involving multiple assaults over a two-year period on another daughter aged between 13 and 16 years, including oral and physical sexual activity. The District Court Judge sentenced N to two years and three months imprisonment, applying a starting point of three and a half years and various discounts for mitigating factors, including guilty pleas, good character, age, and health issues.

N appealed the sentence, arguing that the starting point was too high and that insufficient discount was applied for mitigating factors. The court found that the starting point was appropriate, considering the severity and persistence of the offending. The court also found that the discount for mitigating factors was within the available range, despite N's lack of remorse and acceptance of responsibility, which undermined the value of his guilty pleas. The appeal was dismissed, and the original sentence was upheld.

The court's judgment highlights the importance of evaluating the totality of the offending and the credibility of mitigating factors in sentencing. The appeal against sentence was dismissed, and the original sentence of two years and three months imprisonment was upheld.

Orders