R v AF - [2013] NZHC 822

PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT
1985.

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF THE PRISONER

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-090-002978 [2013] NZHC 822

THE QUEEN

v

AF

Hearing: 19 April 2013

Counsel: NC Wintour for Prisoner
IM Brookie and Y Clarisse for Crown

Judgment: 19 April 2013

SENTENCING NOTES OF TOOGOOD J

Solicitors:
I Brookie/Y Clarisse, Meredith Connell, Auckland: ian.brookie@meredithconnell.co.nz yvanca.clarisse@meredithconnell.co.nz
NC Wintour, Barrister, Auckland: nwintour@civicchambers.co.nz

R V AF HC AK CRI-2012-090-002978 [19 April 2013]

[1] AF, you appear for sentence having being convicted by juries on thirty counts of sexual and violent offending. You were convicted on eleven charges (including two of rape) by a jury in a trial over which I presided in the High Court, as well as nineteen charges (including six rapes) on which you were convicted by a District Court jury in July 2012. The District Court charges have been transferred to this Court so that all matters could be dealt with together.

[2] There were two victims in the District Court case (whom I shall call “V” and “F”) and one in the High Court case (whom I shall call “K”). You terrorised them with violence and sexual abuse which spanned a total period of 16 years. I acknowledge the presence in Court of your three victims. I have read with care the eloquent statements that they have made of the damage you have done to them and the lifelong detrimental effects of your offending upon them, and I have taken that into account.

[3] I tell you now that I do not intend to impose a sentence of preventive detention. I have determined that the predominant sentencing purpose of protecting the community from you can be met adequately by a finite sentence of 20 years' imprisonment, with a minimum period of imprisonment of ten years. I now explain why.

Facts

High Court offending

[4] K was born in June 1986 and you became her stepfather when you married her mother in July 1990. During the period of abuse by you, K lived with her mother, other siblings and you.

[5] Your offending against K began in early 1993 when she was around only seven years old and living in Hamilton. You were convicted on two counts of raping her by putting your penis into her vagina. On the first occasion, when K was around seven, you climbed into bed with her. You removed her clothes before rubbing her vagina and inserting your fingers. You then raped her and you refused to stop when she cried and asked you to stop as she was in pain. You told her to shut up or you would kill her. The next morning there was blood on the sheets.

[6] The second rape occurred in similar circumstances. You entered K’s bedroom and climbed into bed with her. You lay on top of her and rubbed your body against…

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 R v AF

Details

AGLC: R v AF [2013] NZHC 822
Case: [2013] NZHC 822
Decision Date: 19 April 2013

CaseChat Overview and Summary

AF was sentenced by Toogood J in the High Court of New Zealand, Auckland Registry, having been convicted on thirty counts of sexual and violent offending against three victims over a 16-year period. The court was required to decide on the appropriate sentence, considering factors such as the severity of the crimes, the risk of reoffending, and the need to protect the community. The sentencing purposes and principles outlined in the Sentencing Act 2002 were also considered, including holding the offender accountable, promoting a sense of responsibility, denouncing the conduct, deterring the offender and others, protecting the community, and assisting in the offender's rehabilitation and reintegration.

Toogood J decided to impose a finite sentence of 20 years' imprisonment with a minimum period of imprisonment of ten years, rather than ordering preventive detention. The judge concluded that a lengthy finite term of imprisonment incorporating a minimum period would provide adequate protection for society. The court considered the submissions from both the Crown and the offender's counsel and took into account the victims' impact statements, the offender's personal circumstances, prior convictions, and pre-sentence and section 88 reports. The court found that the offender presented a very high risk of reoffending, but there was potential for the offender to respond positively to treatment.

The final orders imposed by the court were for the offender to serve 20 years' imprisonment concurrently, with a minimum period of ten years. The court also directed the Registrar to provide relevant reports and sentencing remarks to the Department of Corrections and arrange for the sentencing remarks to be translated into Samoan for the offender.

Orders