R v Brunie - [2009] NZCA 300

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA199/2009
[2009] NZCA 300
THE QUEEN
v
RALPH LINDSAY BRUNIE
Hearing:8 July 2009

Court:Ellen France, Randerson and Miller JJ
Counsel:A J McKenzie for Appellant

K A L Bicknell for Crown

Judgment:15 July 2009 at 10 am

JUDGMENT OF THE COURT

AAn extension of time for filing the appeal is granted.
BThe appeal against sentence is allowed. The sentence of seven years imprisonment imposed on the two sexual conduct charges is quashed and a sentence of six years imprisonment is substituted. The sentence of four years imprisonment on the grooming charge stands. All sentences to be served concurrently.

REASONS OF THE COURT
(Given by Ellen France J)
Introduction
[1]       The appellant was a youth worker at a secure care and protection facility. While employed at the facility the appellant, who was then 38 years old, had oral sex with a 15-year old girl, A. A was a resident at the facility. Subsequently, the appellant communicated with A over a period of about a month. He arranged to meet up with A who had by then been placed in another, non-secure, facility and had sexual intercourse with her.
[2]       As a result of this conduct, the appellant was convicted after trial of two counts of sexual connection with a person under 16 (s 134(1) of the Crimes Act 1961) and of one count of meeting with a person under 16 following sexual grooming (s 131B(1) of the Crimes Act). The maximum penalties for this offending are ten and seven years imprisonment, respectively.
[3]       The appellant was sentenced on 21 November 2008 by Judge Crosbie to a term of seven years imprisonment. He appeals against his sentence on the ground it is manifestly excessive.
Factual background
[4]       The background to the offending is as follows.
[5]       The complainant was placed in the facility, which is run by Child, Youth and Family services, because she was in need of care and protection. At the age of 13 she had been introduced to drugs and sexual behaviour by an older man. She went missing for a period before being placed in foster care and then in the facility at which the appellant worked. The secure nature of the facility meant she was not free to leave.
[6]       The appellant became aware that A had a cell phone, which was not permitted by the rules of the facility. Rather than remove the phone, the appellant obtained the number and then began to send text messages to A. The messages became sexually explicit and were a precursor to the oral sex which represents the first of the three charges. This offending took place in A’s room. It occurred despite warnings to the appellant from his co-workers that he should desist in his interest in A.
[7]       After the first incident, the appellant continued to contact A after she left the facility. He…

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 Brunie

Details

AGLC: R v Brunie [2009] NZCA 300
Case: [2009] NZCA 300
Decision Date: 15 July 2009

CaseChat Overview and Summary

In the case of R v Brunie, the appellant, Ralph Lindsay Brunie, was convicted of two counts of sexual connection with a person under 16 and one count of meeting with a person under 16 following sexual grooming. Brunie, a former youth worker, had engaged in sexual acts with a 15-year-old girl who was a resident at a secure care and protection facility where he was employed. Brunie appealed against his sentence, arguing that it was manifestly excessive. The appeal was heard in the Court of Appeal of New Zealand, where Ellen France, Randerson, and Miller JJ presided. The Court allowed the appeal against the sentence, substituting a sentence of six years imprisonment for the two sexual conduct charges, while the sentence on the grooming charge remained at four years imprisonment. All sentences were to be served concurrently.

The legal issues the Court had to decide included whether the aggravating features identified by the trial judge warranted a significant uplift on the starting point of four years imprisonment and if the four and a half year uplift adopted by the Judge was manifestly excessive. The Court found that the aggravating features, such as the disparity in ages and the vulnerability of the complainant, premeditation and persistence despite being warned off, gross breach of trust, and repeat offending after grooming, warranted a significant uplift on the four-year point. However, the Court considered that the four and a half year uplift adopted by the Judge was manifestly excessive when compared to the similar case of R v Davidson, where a starting point of nine years imprisonment was seen as appropriate.

The Court of Appeal granted an extension of time for the filing of the notice of appeal, as it appeared there was some misapprehension on the appellant's part as to whether an appeal had been filed. The Crown did not oppose an extension of time, and the Court found it appropriate in the circumstances. The final orders included an extension of time for the filing of the notice of appeal, the allowance of the appeal against sentence, the substitution of a sentence of six years imprisonment for the two sexual conduct charges, and the maintenance of the sentence of four years imprisonment on the grooming charge. All sentences were to be served concurrently.

Orders