R v Ashby - [2019] NZHC 2156

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 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-2017-092-12270 CRI-2016-092-8555

[2019] NZHC 2156

THE QUEEN

v

HEMI ASHBY

Hearing: 30 August 2019

Appearances:

M Williams for Crown T Darby for Defendant

Sentence:

30 August 2019

SENTENCING NOTES OF WALKER J

R v ASHBY [2019] NZHC 2156 [30 August 2019]

Summary

[1] Mr Hemi Ashby, you appear for sentencing on charges against three different victims as follows:

(a)On 6 November 2017, you pleaded guilty to an indecent act on a child under 12 years old (representative),1 and indecent communication with a young person under 16 (representative),2 relating to the first victim;

(b)On 30 January 2018, you pleaded guilty to one count of an indecent act on a child under 12 years old (representative), and one count of an indecent act on a child under 12 years old, relating to the second victim;3

(c)On 21 February 2019, you pleaded guilty to three counts of sexual violation by unlawful sexual connection against the third victim.4

[2] The charges span a period between 2012 to 2016. The three victims were aged between seven (7) and nine (9) years old at the time of the offending.

Agreed summary of facts

[3] It is regrettably necessary to describe your offending to provide context, as sentencing is a public event. I will not in these remarks refer to the victims by name. This is solely to protect their identity. In adopting this course, I intend no disrespect to the victims or their families, nor to depersonalise the offending or treat them as anything but innocent victims of criminal wrongdoing.

First Victim - K

[4] K was an eight or nine-year-old at the time of your offending. You were 25 or 26 years of age. She was the younger step-sister of your girlfriend. She lived with

1      Crimes Act 1961, s 132(3). The maximum penalty is 10 years’ imprisonment.
2      Crimes Act 1961, s 124A. The maximum penalty is three years’ imprisonment.
3      Crimes Act 1961, s 132(3). The maximum penalty is 10 years’ imprisonment.
4      Crimes Act 1961, ss 128 and 128B. The maximum penalty is 20 years’ imprisonment.

her mother and siblings at her mother’s house. You also lived there between November or December 2014 and January 2016. You indecently assaulted K a number of times: attempting to pull down her pants (succeeding on one occasion); kissing her; touching her thigh; touching her vagina (on at least two occasions). Some of these incidents occurred in K’s bedroom; others occurred in the lounge or elsewhere on the property.

[5] Between November 2015 and January 2016, you sent K text messages. Many were sexually explicit. I do not propose to spell out the content, suffice to say they graphically described sexual acts you wanted to carry out on her and asked her to expose her genitalia and…

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 Ashby

Details

AGLC: R v Ashby [2019] NZHC 2156
Case: [2019] NZHC 2156
Decision Date: 30 August 2019

CaseChat Overview and Summary

Hemi Ashby was sentenced on charges of sexual offending against three different victims. The charges related to incidents between 2012 and 2016, when the victims were between the ages of seven and nine. Ashby pleaded guilty to various charges including indecent acts on children under 12 years, indecent communication with a young person under 16, and sexual violation by unlawful sexual connection. The court considered victim impact statements, pre-sentence reports, psychiatric reports, and personal circumstances in determining the appropriate sentence.

The legal issues involved deciding on the appropriate sentence, considering whether a finite sentence or preventive detention was warranted, and determining the minimum period of imprisonment if applicable. The court considered the seriousness of the offending, the vulnerability of the victims, the risk of reoffending, and the mitigating factors related to Ashby's background and personal circumstances.

The court decided to impose a finite sentence of 11 years and 8 months' imprisonment, with a minimum period of imprisonment of 5 years and 9 months. The court found that Ashby presented a high risk of reoffending but was not satisfied that preventive detention was necessary due to Ashby's expressed willingness to undertake treatment, potential for rehabilitation, and the likelihood of extended supervision orders upon release. The court also noted Ashby's relative youth and the possibility of effective treatment during the finite sentence.

Final orders included Ashby being sentenced to 11 years and 8 months' imprisonment with a minimum period of 5 years and 9 months, to be served concurrently. Ashby was also classified as a registrable offender under the Child Protection (Child Sex Offender Government Agency registration) Act 2016 and required to be entered on the Child Sex Offender Register.

Orders