R v Anderson - [2021] NZHC 3396

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-009-001846

[2021] NZHC 3396

THE QUEEN

v

JONATHON WILLIAM ANDERSON

Hearing: 10 December 2021

Appearances:

J E Lancaster for the Crown L L Heah for the Defendant

Judgment:

10 December 2021

SENTENCING REMARKS OF NATION J

[1] You are for sentence in this Court on a charge of indecent assault of a child under 12, breaching prison release conditions and contravening a protection order.

[2] I just want to begin by acknowledging the presence of the people in Court who I assume are likely closely associated with the victim. The Court does not have a victim impact statement. That is not surprising given the young age of the victim but you can be sure that, just from the experience Judges have of having to deal with cases like this, we are acutely aware of the anguish that has been caused by offending of this nature and of the effects that it would have on a young child, probably for the rest of her life.

R v ANDERSON [2021] NZHC 3396 [10 December 2021]

[3] Obviously, with a sentencing like this, the emphasis in all my remarks has to be on what needs to be done with the offender, Mr Anderson. So, it might seem to you that the Court is concerned more with him than with the victim. But, I can assure you that is not how it is. We are acutely conscious of the nature of this offending and the consequence it has had.

[4] You will gather Mr Anderson from what you have heard from what counsel has said that there are quite a few complexities with this sentencing process. You and others in Court need to know that, before coming into Court today, I had very detailed psychological reports, as well as the pre-sentence report, I had detailed submissions from counsel. So, I have had the opportunity to consider those reports very carefully and obviously counsel have emphasised what they wanted to today in relation to those reports. But, what I am saying now is based on a lot of information that has been put in front of me.

[5] You have a long record of previous criminal offending. There is a particular concern over your previous sexual offending. In 2005, you were convicted of rape and sentenced to imprisonment for seven years. In March 2018, you were sentenced to imprisonment for 17 months on a charge of indecently assaulting a female over the age of 16. On conviction, you were given a first warning under the three strikes legislation. You were warned that, if you committed another serious violent offence and were sentenced to imprisonment, you would have to serve the whole of that prison sentence without parole.1

[6] Of the present charges, your most serious offence is the charge of indecent assault. In the particular circumstances, I am going to discuss what sentence would be imposed for that…

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 Anderson

Details

AGLC: R v Anderson [2021] NZHC 3396
Case: [2021] NZHC 3396
Decision Date: 10 December 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Jonathon William Anderson faced sentencing for multiple charges, including indecent assault of a child under 12, breaching prison release conditions, and contravening a protection order. The legal issues before the court involved determining appropriate sentences for each offence, considering the aggravating factors and mitigating circumstances, and deciding whether a sentence of preventive detention was warranted.

The court carefully considered the extensive criminal history of the defendant, who had previous convictions for serious sexual and violent offences, and a pattern of drug and alcohol abuse. The court also took into account detailed psychological evaluations that indicated a high risk of reoffending. Despite this, the court recognised the defendant's guilty plea and potential for rehabilitation through treatment programmes. Weighing these factors, the court decided against a sentence of preventive detention, opting instead for a fixed-term sentence that included imprisonment for 28 and a half months on the indecent assault charge, with a minimum term of 19 months. The sentences for the other charges were cumulative, resulting in an overall sentence of 36 and a half months' imprisonment. The court issued a second-stage warning under the three strikes legislation, emphasizing the likelihood of preventive detention for any future serious sexual violence offence.

Orders