R v Anae - [2018] NZHC 197

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2017-004-7564

CRI 2016-092-1949
CRI 2015-004-4048

[2018] NZHC 197

THE QUEEN

v

SEKOA JOHNATHAN ANAE

Hearing: 20 February 2018

Appearances:

E J McCaughan for Crown M J Kidd for Defendant

Sentencing:

20 February 2018

SENTENCING NOTES OF VAN BOHEMEN J

Solicitors:
Crown Solicitor, Manukau
Counsel:
M J Kidd, Auckland

R v ANAE [2018] NZHC 197 [20 February 2018]

Introduction

[1]Sekoa Johnathan Anae, you appear for sentence after pleading guilty to:

(a)One charge of aggravated robbery;1

(b)Two charges of indecent assault on a person over 16;2 and

(c)Three charges of offensive use of a telephone.3

[2] When you appeared for sentence in the District Court on 16 June 2017, Judge Cunningham was of the view that a sentence of preventive detention may be appropriate and accordingly declined jurisdiction and transferred the sentencing to the High Court. You then sought to vacate your guilty pleas on the basis that you had not been advised that preventive detention was a possible sentencing outcome when you pleaded guilty. However, you formally abandoned this application at callover on 18 October 2017, where Brewer J ordered two health assessor’s reports pursuant to s 88 of the Sentencing Act 2002.

[3] The charge of aggravated robbery carries a maximum sentence of 14 years’ imprisonment and the charge of indecent assault carries a maximum sentence of seven years’ imprisonment. As you have heard, the Crown has asked this Court to consider imposing an indeterminate sentence of preventive detention on those charges. The Crown says this is appropriate because of the seriousness of the offending and the future risk to the community which would follow release after serving a finite sentence, a fixed sentence.

[4] I have read the pre-sentence reports including the reports of the two health assessors, Dr Allan and Dr Skipworth.

[5] I will first outline the offending and establish what would be an appropriate finite sentence, before considering preventive detention.

1      Crimes Act 1961, s 235; maximum penalty of 14 years’ imprisonment.
2      Crimes Act, s 135; maximum penalty of seven years’ imprisonment.
3      Telecommunications Act 2001, ss 112(1); maximum penalty of three months’ imprisonment or a fine not exceeding $2,000.

Circumstances of the offending

Indecent assault

[6] You were residing at the home address of the 16 year old victim of the two incidents of indecent assault, along with the victim’s mother, her partner, and younger siblings. You were there as part of your bail conditions at the time.

[7] On the evening of 25 July 2015, the victim was in her bedroom. You approached the bedroom window from the outside and offered the victim a smoke, and gave her a pipe containing methamphetamine. After the victim smoked some of the methamphetamine you asked if the victim felt funny in a sexual way.…

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 Anae

Details

AGLC: R v Anae [2018] NZHC 197
Case: [2018] NZHC 197
Decision Date: 20 February 2018

CaseChat Overview and Summary

Sekoah Johnathan Anae was sentenced for one count of aggravated robbery, two counts of indecent assault, and three counts of offensive use of a telephone. The Crown argued for preventive detention, and the sentencing judge considered both the finite sentence and the preventive detention options. The judge considered the defendant's violent and sexual offending history, the seriousness of the harm caused to the victims, the risk of reoffending, the absence of rehabilitation efforts, and the principle that a lengthy determinate sentence is preferable if it provides adequate protection for society. The judge concluded that preventive detention was not appropriate, and sentenced the defendant to five years and six months’ imprisonment. The judge also issued a final warning under the Three Strikes regime that a conviction for any serious violent offence in the future would result in a maximum term of imprisonment served without parole or early release.

Orders