P v The Queen - [2017] NZHC 3135

AN ORDER EXISTS PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV 2017-416-24 [2017] NZHC 3135

BETWEEN
P

Appellant

AND

THE QUEEN Respondent

Hearing: 12 December 2017

Counsel:

T Epati for Appellant
J A Eng for Respondent

Judgment:

14 December 2017

JUDGMENT OF ELLIS J

[1] Mr P pleaded guilty on one charge of indecent assault on a girl aged 12-16, and was found guilty by Judge Cathcart in the District Court at Gisborne on a further three charges involving the same complainant.1 The offending occurred between April 1992
and April 1994. He was sentenced to two years and one month’s imprisonment.2 He

1 R v P [2017] NZDC 18540.
2 R v P [2017] NZDC 23555.

appeals against sentence on the basis that the discount given for mitigating factors was insufficient, and that home detention should have been imposed.

Facts

[2] The complainant was Mr P’s step-daughter (D). Both D and Mr P have name suppression to protect D’s privacy.

[3] The facts underlying representative charge to which Mr P pleaded guilty were that, between 1 April 1992 and 1 April 1994 (between D’s 13th and 15th birthdays) he indecently touched her breasts. He admitted this offending in his interview and at trial, but said it occurred a few times over a single week. D said it happened much more frequently and the Judge found that it occurred over the course of a year on an intermittent basis.

[4] The Judge also found Mr P guilty on a representative charge of touching D’s pubic hair under her knickers or pyjama pants. Mr P had also partially admitted this offending, accepting that he had touched her “between her legs”. Again, he maintained that this only happened over the same period of around a week. The Judge rejected this, again finding that it happened over the course of a year.

[5] The Judge then found Mr P guilty on two specific charges. Both occurred when D’s mother and brothers had left the house in the morning and Mr P had called her into his room to say goodbye before going to school. Most of the time, she said, she would be on top of the blankets and could feel Mr P’s penis “gyrating” against her. On one occasion, however, he got her hand, put it behind her back, gripped her fingers around his penis and made her masturbate him.3

[6] The other specific charge involved Mr P putting his hand in D’s knickers and rubbing her clitoris and towards the entrance of her vagina to the point of orgasm. The
victim described this as “the worst” incident.

3 There was a second charge of this nature but the victim was unclear whether…

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 Queen

Details

AGLC: P v The Queen [2017] NZHC 3135
Case: [2017] NZHC 3135
Decision Date: 14 December 2017

CaseChat Overview and Summary

Mr P appeals against his sentence for four counts of indecent assault on his step-daughter, D. The offending occurred between April 1992 and April 1994, when D was between 13 and 15 years old. Mr P was sentenced to two years and one month’s imprisonment. The appeal is against the sentence, not the conviction. The primary ground of appeal is that the Judge’s discount for subsequent good character was insufficient. The appellant also contends that the Judge should have discounted for remorse and an offer to participate in a restorative justice process. If those discounts had been applied, the appellant submits, home detention should have been imposed.

The central issue before the court was whether the Judge was correct to discount the sentence for subsequent good character, remorse and the offer of restorative justice to the extent that he did. The court noted that Mr P continued to deny most of the offending, including the most serious incidents. Even after trial, he maintained that he had no recollection of the offending to which he had pleaded not guilty, and that he had not been sexually attracted to D. The court held that it was open to the Judge to decline to discount further on that basis. Given that the court concluded there was no basis for disturbing the sentence, there was no need to consider whether home detention should have been imposed.

The appeal against sentence was dismissed. Mr P is not eligible for home detention.

The final orders were that the appeal against sentence is dismissed.

Orders