R v Borton - [2019] NZHC 2662

THE NAMES OF THE VICTIMS ON THE MURDER AND SEXUAL OFFENDING CHARGES ARE SUPPRESSED.

THE NAMES OF THE PROPERTY OWNERS

(CHARGES 2, 3 AND 10) ARE SUPPRESSED AS IS THE STREET NUMBER.

SOME DETAIL OF THE OFFENDING ON THE 12-YEAR-OLD VICTIM IS SUPPRESSED, AS DETAILED ON THE SUMMARY OF FACTS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-085-897

[2019] NZHC 2662

THE QUEEN

v

JOSEPH WILLIAM BORTON

Hearing: 18 October 2019

Counsel:

G J Burston for Crown E A Hall for Defendant

Sentencing:

18 October 2019

SENTENCING REMARKS OF SIMON FRANCE J

[1] Mr Borton, now aged 31, has pleaded guilty to what can only be described as an horrific incident of violence and sexual abuse on a mother and her daughter. There are a number of charges, the most serious of which are murder of the mother, and sexual violation and serious violence on the 12-year-old daughter.

R v BORTON [2019] NZHC 2662 [18 October 2019]

[2] The offending received considerable publicity at the time of the plea. I will today recount the offending to the extent necessary to explain the sentencing, but no more than that.

[3] In the lead-up to the offending the victims were living for a week in the house next door to where Mr Borton was living. They became acquainted during this time. The victims then vacated the property which was owned by a family member. However, circumstances caused them to return to the house on occasions, be it to tend to pets or use the laundry.

[4] The 4th April was one such visit. The victims were observed by Mr Borton, who armed himself with a mallet he had stolen some time previously from another adjoining property. The mallet has a wooden handle and heavy metal head. Mr Borton then let himself into the house where the victims were, using the back door as an entrance.

[5] He first encountered the 12-year-old, who greeted him but then turned away to carry on with what she was doing. Mr Borton hit her on the back of the head with the mallet. He then applied pressure to her mouth and throat. The girl resisted and managed to scream. Mr Borton again hit her with the mallet. This caused a skull fracture and rendered the girl unconscious.

[6] Alerted by the scream, the mother came to the scene. Before she could do anything, Mr Borton struck her a number of times, incapacitating her. There were at least eight blows to the head, causing a skull fracture and heavy blood loss. Mr Borton would later admit to having attacked the mother so he could sexually assault the 12- year-old.

[7] The mother lived for some time, making groaning noises that would be heard at various points by the daughter. At some point Mr Borton removed the injured, probably unconscious, woman’s clothing, both to look at her breasts and to pose her sexually so he could see…

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 Borton

Details

AGLC: R v Borton [2019] NZHC 2662
Case: [2019] NZHC 2662
Decision Date: 18 October 2019

CaseChat Overview and Summary

The defendant, Joseph William Borton, pleaded guilty to a series of violent and sexual offenses against a mother and her 12-year-old daughter. The offenses included murder, sexual violation, indecent assault, wounding with intent to cause grievous bodily harm, aggravated burglary, and theft. The Court was tasked with determining the appropriate sentence for each offense, considering factors such as the brutality and premeditation of the crimes, the defendant's lack of prior criminal history, and his mental health status. The Court also had to assess the risk of reoffending and decide whether preventive detention was necessary to protect the public.

The Court imposed a sentence of life imprisonment with a minimum non-parole period of 19 years for the murder charge. The Court found numerous aggravating factors, including the premeditated nature of the crime, the use of a weapon, and the callousness of leaving the victim to die. The Court considered the defendant's early guilty plea and his lack of remorse but ultimately determined that a lengthy sentence was necessary to properly denounce the conduct and hold the offender accountable. For the sexual violation charges, the Court imposed preventive detention, finding that the defendant posed a significant risk of reoffending due to his history of voyeurism, lack of treatment, and the experts' concerns about his sexual fantasies and proclivities. The Court also imposed concurrent sentences for the other charges, including five years for aggravated burglary, six years for wounding with intent to cause grievous bodily harm, and various shorter terms for theft and indecent assault. The Court ordered the destruction of the weapon used in the crimes and the defendant's inclusion on the Child Sex Offender Register.

The Court's decision reflects the gravity of the offenses and the need to protect the public from a potentially dangerous individual. The Court balanced the defendant's lack of prior criminal history and early guilty plea against the brutal and premeditated nature of the crimes, ultimately imposing a lengthy sentence that includes preventive detention to ensure the defendant remains incarcerated until it is safe to release him. The Court's detailed analysis of the defendant's mental health, risk of reoffending, and the impact of the crimes on the victims and their families demonstrates a thorough consideration of all relevant factors in determining an appropriate sentence.

Orders