R v Batey - [2012] NZHC 3001

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY SS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.

NOTE: SUPPRESSION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT'S FAMILY PROHIBITED BY S 202 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-006429 [2012] NZHC 3001

THE QUEEN

v

GARY GRAEME BATEY

Hearing: 13 November 2012

Counsel: L MacDonald for Crown
S Blake for Prisoner

Judgment: 13 November 2012

SENTENCING NOTES OF WOOLFORD J

Solicitors:

Crown Solicitor, Auckland
Mr S Blake, Barrister, Auckland.

R V BATEY HC AK CRI-2012-092-006429 [13 November 2012]

Offences

[1] Mr Batey on 3 October 2012 you pleaded guilty to the following charges:

Offence Date of offence Section / Act Maximum penalty

Sexual violation by rape (representative)

Doing an indecent act on a child under 12 (representative)

Doing an indecent act on a child under 12

Between 6 August 2008 and 24 December 2011

Between 1 March 2011 and 5 August 2011

Between 6 August 2011 and 24 December 2011

s 128(1)(a) Crimes Act

1961

s 132(3) Crimes

Act 1961

s 132(3) Crimes

Act 1961

s 132(3) Crimes

Act 1961

20 years imprisonment

10 years imprisonment

Facts

[2] I will now say a little about the circumstances of your offending. You and the victim’s father, who I shall refer to as Mr E, were personal friends. He and the victim’s mother had separated and he was the primary caregiver for the victim, who I shall refer to as B, and her brother. The offending began when the victim was around 7 years old and continued up to the age of 10.

[3] Your friendship with Mr E appears to have been a relatively close one. Mr E evidently had a considerable degree of trust in you as is demonstrated by allowing you to babysit both B and her brother and by allowing them to go with you to events without his supervision. At times you would also stay the night at their house. This was the background against which your offending occurred.

[4] The charge of sexually violating the victim is a representative one which covers the numerous instances on which this occurred over the three year period of your offending. The pattern to this offending was fairly similar. It would appear that on most occasions you would wait for anyone who was in the house to fall asleep before going to the victim’s room. At times only her brother was present but on some occasions her father was also in the house.

[5] Once in her room you would wake her, ask her if she wanted “to play” by which you meant engage in sexual activity and proceed to remove her pyjamas. You would then penetrate her genitalia with your penis. These incidents would often end with you ejaculating onto the victim and then…

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 Batey

Details

AGLC: R v Batey [2012] NZHC 3001
Case: [2012] NZHC 3001
Decision Date: 13 November 2012

CaseChat Overview and Summary

The case of R v Batey involved a defendant, Gary Graeme Batey, who was convicted of multiple sexual offenses against a child under the age of 12, including sexual violation by rape, and doing indecent acts on a child under 12. The offenses occurred over a three-year period, starting when the victim was approximately seven years old. The High Court of New Zealand was tasked with determining the appropriate sentence for Batey, considering both the aggravating and mitigating factors of the case.

The primary legal issues before the court included the assessment of the seriousness of the offenses, the impact of the offenses on the victim, and the appropriate sentence that would serve the purposes of accountability, denunciation, and protection of the community. The court also had to determine whether a minimum period of imprisonment (MPI) should be imposed and, if so, its appropriate length.

The court considered the nature and extent of the offenses, the vulnerability of the victim, the breach of trust by Batey, and the harm caused to the victim. It evaluated the offenses against similar cases to determine an appropriate starting point for sentencing, which was set at 16 years imprisonment. The court also considered Batey's guilty plea as a mitigating factor, reducing the sentence by approximately 20%, resulting in a sentence of 12 years and 9 months imprisonment. Given the protracted nature of the offenses and the violation of trust, the court imposed a MPI of six years, meaning Batey would serve a minimum of six years before being eligible for parole.

In summary, the court sentenced Batey to 12 years and 9 months imprisonment for the charge of sexual violation by rape, and seven years for the representative charge of indecency against a child. For the remaining two charges of indecency against a child, the court imposed sentences of five years each, all to be served concurrently. The court also ordered that Batey serve a minimum of six years imprisonment before being considered for parole.

Orders