R v B - [2023] NZHC 3649

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2021-083-184

[2023] NZHC 3649

THE KING

v

B

Hearing: 12 December 2023

Appearances:

J J Harvey and K D Turner for Crown J H Waugh for Defendant

Judgment:

12 December 2023

SENTENCE OF LA HOOD J

Introduction

[1] Mr B1 you appear for sentence today, having pleaded guilty to the following charges:

1 This judgment refers to the defendant as B in order to preserve the victims’ automatic name suppression under s 203 of the Criminal Procedure Act 2011. However, the defendant himself does not have name suppression, which means publication of his name is not prohibited provided any reporting cannot lead to identification of the victims.

R v B [2023] NZHC 3649 [12 December 2023]

(a)three representative charges of sexual violation by unlawful sexual connection.2

(b)two representative charges of sexual conduct with a child under 12;3 and

(c)one representative charge of attempted sexual violation by rape.4

[2] Mr B, I have decided that the sentence I am going impose on you today is preventive detention. I will explain how I have reached this conclusion in the following way:

(a)First, I will describe the facts of your offending.

(b)Second, I will assess what your sentence would be if preventive detention was not imposed. That involves a two step process:

(i)the first step is to adopt a starting point that includes the aggravating and mitigating factors of your offending;

(ii)the second step is to assess the appropriate uplifts or reductions from the starting point that reflect factors personal to you.5

(c)Finally, I will explain why I consider it is necessary to sentence you to preventive detention given the risk that you pose to the community.

The offending

[3] You are to be sentenced for sexual offending against four victims. It is important that I describe the nature of that offending in some detail, but I reiterate to those present that the victims of the offending have name suppression and that their identities cannot be publicised.

2      Crimes Act 1961, ss 128(1)(b) and 128B – maximum sentence 20 years’ imprisonment.
3      Section 132(3) – maximum sentence 10 years’ imprisonment.
4      Sections 128(1)(a) and 129 – maximum sentence 10 years’ imprisonment.
5      Moses v R [2020] NZCA 296 at [46].

M

[4] The most serious offending was against your daughter M. There are three charges that represent prolonged and persistent sexual abuse of M over an eight-year period. These are two charges of sexual violations by unlawful sexual connection, both representative, and one representative charge of attempted rape. The offending occurred between 2010 and 2018, when M was between six and 13 years of age. During most of this time you were living with her in the family home.

[5] Between March 2010 and March 2018, you sexually violated M by inserting your penis…

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 B

Details

AGLC: R v B [2023] NZHC 3649
Case: [2023] NZHC 3649
Decision Date: 12 December 2023

CaseChat Overview and Summary

In the case of R v B, the defendant was sentenced for multiple sexual offences against children and teenagers, including his daughter and stepchildren. The court found that B's offending was extremely serious, involving prolonged and persistent abuse against multiple victims over a significant period of time. The court considered factors such as the scale of the offending, the breach of trust, the vulnerability of the victims, the harm caused, and the premeditated nature of the offences. The starting point for the sentence was set at 17 and a half years' imprisonment, which was uplifted by six months due to B's previous convictions and offending on bail. The court also considered mitigating factors such as B's guilty pleas, which resulted in a reduction of two years and eight months from the starting point. However, the court ultimately decided that a finite sentence would not adequately protect the community from B's significant risk of reoffending. Therefore, the court imposed a sentence of preventive detention under the Sentencing Act, with a minimum period of imprisonment of eight years. This decision was based on the clear pattern of serious sexual offending, the high risk of future offending, and B's lack of insight and engagement with treatment programs.

The final orders of the court were as follows: B was sentenced to preventive detention with a minimum period of imprisonment of eight years on each of the two charges of sexual violation by unlawful sexual connection relating to his daughter M. On the charge of attempted sexual violation by rape relating to M, B was sentenced to seven years' imprisonment. On the charge of sexual violation by unlawful sexual connection relating to his stepchild A, B was sentenced to three and a half years' imprisonment. On each of the two charges of sexual conduct with a child under 12, B was sentenced to two years' imprisonment. All the terms of imprisonment were to be served concurrently.

Orders