R v Brady - [2013] NZHC 199

PUBLICATION OF NAME(S) OF IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-003962 [2013] NZHC 199

THE QUEEN

v

TIMOTI MARTIN BRADY

Appearances: M R Harborow for Crown
J J Corby for Accused

Judgment: 14 February 2013

SENTENCING NOTES OF COURTNEY J

Solicitors: Meredith Connell, P O Box 2213, Auckland 1140
Fax: (09) 336-7629 – M Harborow

Counsel: J J Corby, P O Box 105495, Auckland 1143
Fax: (09) 379-7606 – Email: j.corby@xtra.co.nz

R V BRADY HC AK CRI-2012-004-003962 [14 February 2013]

[1] Timoti Martin Brady, you appear for sentence today on two charges of sexual violation by unlawful sexual connection and one of sexual violation by rape. Each of these offences carries a maximum penalty of 20 years imprisonment.

[2] These offences occurred over a number of hours on the evening of 31

October 2011. You had set out in your vehicle alone in the hope of picking up a young woman and having sex. You saw the complainant, R, sitting outside the Glen Eden shops and you invited her into your vehicle. At the time R was 15 and you were 24. It is likely that you did not know exactly how old R was but it would have been clear to you that she was much younger than you, somewhere in her mid-teens. You purchased liquor and you drove to Eric Armishaw Park in Point Chevalier. The two of you drank some liquor and there was sexual activity between you. I note here that you were originally charged with seven counts of unlawful sexual activity but convicted on three. I am unable to conclude from the mere fact of the acquittals on the other charges, however, that the rest of the sexual activity was consensual.

[3] At some point, it is, however, clear that R was not consenting. The first of the offences occurred at Eric Armishaw Park when R was, as she described it, lying on her stomach crying. You pulled down her pants and inserted your penis into her anus. R described this as the sorest thing she had ever experienced. Subsequent examination disclosed tears in the anal canal and wider area. Full examination of that area was impossible because of the reported pain. Later the next day her sister noticed that she had difficulty walking. The contemporaneous pain and the trouble she had walking the following day is the reason I associate her injury with the violation rather than some other reason as suggested by your counsel.

[4] A little later, still in the same park, you engaged in oral sex with R. The jury rejected your claim that this activity was consensual. R’s account was that you forced her mouth open and put your penis into it, and she was choking and crying. You told her to put her tongue out and when she refused you ejaculated on her face. Because she tried to move her head at…

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 Brady

Details

AGLC: R v Brady [2013] NZHC 199
Case: [2013] NZHC 199
Decision Date: 14 February 2013

CaseChat Overview and Summary

Timoti Martin Brady was sentenced for two counts of sexual violation by unlawful sexual connection and one count of sexual violation by rape. The offences occurred on 31 October 2011, when Brady, aged 24, picked up a 15-year-old girl, R, and engaged in sexual activity with her over several hours. The court found that the sexual activity was not consensual at certain points. Brady was originally charged with seven counts of unlawful sexual activity but was convicted on three. The court determined that the victim sustained injuries during the anal penetration and that the victim's account of forced oral sex and rape was credible. The court also considered the impact on the victim, who experienced physical and emotional harm.

The legal issues in the case involved determining the appropriate sentence for Brady's offences, considering the principles of sentencing outlined in the Sentencing Act 2002. The court needed to assess the gravity of the offending, the seriousness of the type of offence, the desirability of consistency in sentencing, and the effect of the offending on the victim. The court also considered the Court of Appeal's decision in R v AM, which provides guidance on determining an appropriate sentence for sexual offences. The court needed to decide whether Brady's offending fell within band 1 or band 2, as outlined in R v AM, and to determine the appropriate starting point and any uplifts or reductions based on the specific circumstances of the case.

The court found that Brady's offending fell within band 2 due to the scale of the offending, the levels of violence, and the degree of violation. The court considered the anal penetration as the lead offence and set an appropriate starting point of eight-and-a-half years. The court uplifted the sentence by a year to reflect the totality of the offending, resulting in an end sentence of nine-and-a-half years for the anal penetration charge. The court imposed eight-year sentences for the other two charges, to be served concurrently with the nine-and-a-half-year sentence. The court rejected the defence's argument for a lower sentence and did not find any mitigating factors that would justify a reduction. The court also noted that Brady's previous convictions and his attitude towards women contributed to his offending. The court encouraged Brady to engage in rehabilitative counselling during or after his imprisonment.

The final orders of the court were that Brady be sentenced to nine-and-a-half years imprisonment for the charge of unlawful sexual connection by anal penetration, and eight years imprisonment for each of the other two charges, all to be served concurrently.

Orders