Legal Research
Cases
P v The King

P v The King

Case [2023] NZHC 566 14 December 2023

No judgment structure available for this case.

Type to search within this case.

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF ANY COMPLAINANTS/PERSONS UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-565

[2023] NZHC 566

BETWEEN
P

Appellant

AND

THE KING

Respondent

Hearing: 5 December 2023

Appearances:

T M Saseve for Appellant

B N Kirkpatrick and A F Afzaly for Respondent

Judgment:

14 December 2023

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 14 December 2023 at 2.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Saseve, Auckland
Meredith Connell, Auckland

P v R [2023] NZHC 566 [14 December 2023]

[1] On 24 October 2023, the appellant (P) was sentenced, having pleaded guilty to one representative charge of assaulting a child, one representative charge of assault on a person in a family relationship, and one charge of indecent assault.1 Judge K Davenport KC entered a conviction and sentenced P to six months’ home detention.2

[2] This is an appeal against the Judge’s refusal to discharge the appellant without conviction. Counsel for the appellant submits that the Judge was in error or imposed a manifestly excessive sentence. The allegation is that the Judge failed to take into account all relevant mitigating factors relating to the offending and his personal circumstances. The mitigating factors were:

(a)full cooperation with the police;

(b)guilty pleas;

(c)undertaking and completing a Man Alive programme designed to improve his parenting and anger management skills;

(d)his assurance that he would use best endeavours to find, enrol in and complete an appropriate programme that would address any sexual behaviour/deviancy issues to ensure no repeat offending;

(e)P accepted his offending and apologised to those affected, and the bail conditions precluded contact with his adopted daughters;

(f)his long-term marriage with his wife and the mother of the two affected children has ended, so he has had no contact with the complainants; and

(g)the appellant is of good character with no previous convictions and is supported by favourable references.

1 The appellant’s name has been anonymised in this judgment so as not to undermine the statutory suppression of the complainants pursuant to ss 203 and 204 of the Criminal Procedure Act 2011. See H v R [2019] NZSC 69, [2019] 1 NZLR 675 at [54]–[55].
2 R v [P] [2023] NZDC 23287.

[3] In addition, counsel for the appellant alleges that the Judge erred in failing to give sufficient weight to the adverse consequences of a conviction relative to the offending. In making that comparison, counsel says the Judge overstated the significance of the offending and underestimated the potential consequences that convictions would have for his employment.

[4] If a discharge without conviction…

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 P v The King

Details

AGLC: P v The King [2023] NZHC 566
Case: [2023] NZHC 566
Decision Date: 14 December 2023

CaseChat Overview and Summary

The case of P v The King involves an appeal against the refusal of the sentencing judge to discharge the appellant without conviction. The appellant, P, had pleaded guilty to multiple charges including assaulting a child, assaulting a person in a family relationship, and indecent assault. The High Court was required to determine whether the sentencing judge made an error in imposing the sentence of six months’ home detention, and if the sentence was manifestly excessive.

The court considered whether the sentencing judge failed to take into account all relevant mitigating factors and personal circumstances of P, including his cooperation with the police, guilty pleas, completion of a Man Alive programme, and assurances to address any sexual behaviour issues. The court also assessed whether the judge appropriately weighed the potential adverse consequences of a conviction, particularly in relation to P’s employment. The court found that the sentencing judge had adequately considered all mitigating factors and the potential consequences, and that the sentence was not manifestly excessive.

In determining the appropriate sentence, the court considered the hierarchy of sentences available and the principle that the least restrictive outcome appropriate in the circumstances should be imposed. The court compared the case to analogous cases, finding that the sentence of six months’ home detention was within the appropriate range for the gravity of the offences committed. The appeal was dismissed as the court was not satisfied that a miscarriage of justice had occurred.

Orders