R v Cash

Case [2020] NZHC 2629 6 October 2020

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NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-019-6911

[2020] NZHC 2629

THE QUEEN

v

TAUKIRI MAKAIRA CASH

Hearing: 6 October 2020

Appearances:

J N Hamilton and S D Taylor for the Crown J S Gurnick for the Defendant

Judgment:

6 October 2020

SENTENCING NOTES OF JAGOSE J

Counsel/Solicitors:
J S Gurnick, Barrister, Hamilton
Hamilton Legal, Crown Solicitor, Hamilton

R v CASH [2020] NZHC 2629 [6 October 2020]

[1] Mr Cash, as you know, I am now to sentence you on your convictions for: kidnapping;1 attempting to do an indecent act on a child under the age of 12;2 intentionally exposing a young person under the age of 16 to indecent material in communicating with her;3 and three counts of doing an indecent act with intent to insult or offend.4

[2] You have already been given a first ‘strike’ warning, meaning you will have to serve the full term of imprisonment for any future serious offence you might commit. If that applied to you now, which it does not, you would be facing fourteen years’ imprisonment now. And I say that just to illustrate that your sentence now has to be substantially less than that.

[3] I have considered what counsel have had to say, both for you and for the Crown. They recommend a starting point for your imprisonment ranging from five and a half years to seven and a half years, with a variety of uplifts, discounts, and credits to reflect factors personal to you.

[4] I am not bound by their recommendations. I must satisfy myself of the appropriate sentence for the gravity – the seriousness – of your offending, including your culpability – your responsibility – for it.

[5] The victims of your offending are twelve girls, who were aged between four and 11 years of age at the time. Because of their ages, their names and other identifying particulars automatically are suppressed.5

Background

[6] I need to cover off the background to your offending, to let people know the conduct for which I am sentencing you. It all occurred from your car.

1      Crimes Act 1961, s 209. Maximum penalty 14 years’ imprisonment.
2      Sections 132(3) and 72. Maximum penalty 10 years’ imprisonment. However, per s 311(1), the maximum penalty for an attempt under this head is 5 years’ imprisonment.
3      Section 124A. Maximum penalty three years’ imprisonment.
4      Section 126. Maximum penalty two years’ imprisonment.
5      Criminal Procedure Act 2011, s 204.

[7] On 26 August 2018, you attracted the attention of a group of three girls aged 10 or 11 walking on the footpath, and showed them a picture of a naked woman on your mobile phone. They became upset and…

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 Cash

Details

AGLC: R v Cash [2020] NZHC 2629
Case: [2020] NZHC 2629
Decision Date: 6 October 2020

CaseChat Overview and Summary

Taukiri Makaira Cash was convicted of kidnapping, attempting to do an indecent act on a child under the age of 12, intentionally exposing a young person under the age of 16 to indecent material in communicating with her, and three counts of doing an indecent act with intent to insult or offend. The court had to determine an appropriate sentence for Cash's serious criminal conduct, taking into account his personal circumstances and the impact of his crimes on the victims. The primary legal issue was to establish a suitable starting point for the sentence, and then adjust it based on mitigating and aggravating factors. The court considered Cash's background, including his history of violence, drug use, and family dysfunction, as well as his expressions of remorse and his lack of insight into the harm he caused. The court also weighed the impact of his crimes on the victims, who experienced trauma, fear, and a loss of trust and safety. After considering the submissions from both the Crown and Cash's counsel, the court determined a starting point of six and a half years' imprisonment. The court then applied a ten percent discount for Cash's guilty pleas, resulting in a final sentence of five years and ten months' imprisonment, to be served concurrently. The court also imposed a minimum period of imprisonment of three years, during which Cash would not be eligible for parole. The court emphasized the importance of holding Cash accountable for his actions and ensuring the protection of the community, particularly children.

Orders