R v Cheesman - [2017] NZHC 2800

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 203 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-019-2515 [2017] NZHC 2800

THE QUEEN

v

KENNETH HERBERT CHEESMAN

Hearing: 15 November 2017

Counsel:

R Douch for Crown
W Dollimore for Prisoner

Judgment:

15 November 2017

SENTENCING NOTES OF WHATA J

R v CHEESMAN [2017] NZHC 2800 [15 November 2017]

Solicitors: Crown Solicitor, Hamilton

[1] Mr Cheesman, you don’t need to stand. I will get you to stand at the end of the sentence.

[2] Mr Cheesman, you face sentence in respect of one charge of sexual exploitation of a person with a significant impairment.1 The maximum penalty is ten years’ imprisonment. The Crown also seeks a sentence of preventive detention, in terms of s 87 of the Sentencing Act 2002.

[3] There is no dispute that there is jurisdiction to impose a sentence of preventive detention: you are over 18, being aged 79;2 you have been convicted with a qualifying offence;3 you have been notified a sentence of preventive detention will be considered;4 and there are two reports prepared by qualified health assessors which assess the likelihood of you committing a further qualifying offence.5 To impose a sentence of preventive detention, then, I must be satisfied you are likely to commit another qualifying offence if you are released at the expiry of any finite sentence I might impose.6 On this, I note the health assessors’ reports indicate that you pose a below average to very high risk of committing further sexual offending in the future.

Summary of facts

[4] Mr Cheesman, you have pleaded guilty to the following summary of facts. Between December 2016 and 14 April 2017, the victim, who suffers from an intellectual disability, would visit you at your home address. From your first meeting, you encouraged the victim to engage in sexual conduct, including kissing, fondling and vaginal penetration. During these visits, on five occasions you penetrated the victim’s vagina using your fingers. On three further occasions, you performed oral
sex on the victim, penetrating her vagina with your tongue.

1      Crimes Act 1961, s 138(1).
2      Sentencing Act 2002, s 87(1)(b).
3      Section 87(1)(a).
4      Section 88(1)(a).
5      Section 88(1)(b).
6      Section 87(1)(c).

[5] During this time, you purchased a vibrator for the victim. On two occasions, you used the vibrator to penetrate the victim’s vagina. You also provided the victim with gifts, including cash and cigarettes, in exchange for the sexual conduct.

[6] You were aware the victim suffered an impairment, to the extent that it would affect her ability to make decisions or know the consequences of the sexual conduct. You exploited the victim’s impairment in order to facilitate the conduct.

Personal circumstances

[7] In terms of your personal circumstances, Mr Cheesman, you are 79 years old and of European descent. You are the youngest of five siblings, with three brothers and a sister. You…

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 Cheesman

Details

AGLC: R v Cheesman [2017] NZHC 2800
Case: [2017] NZHC 2800
Decision Date: 15 November 2017

CaseChat Overview and Summary

The case of R v Cheesman was heard in the High Court of New Zealand Hamilton Registry. The defendant, Kenneth Herbert Cheesman, pleaded guilty to one count of sexual exploitation of a person with a significant impairment, contrary to section 138(1) of the Crimes Act 1961. The court was required to decide on the appropriate sentence, including whether a sentence of preventive detention under section 87 of the Sentencing Act 2002 was warranted. The Crown sought a sentence of preventive detention, given Cheesman's extensive history of sexual offending against children and vulnerable individuals, spanning several decades.

The court considered various factors, including the aggravating features of the crime, such as the deliberate and persistent nature of the offending, the victim's vulnerability due to her intellectual disability, and the significant age disparity between the offender and the victim. The court also noted the defendant's extensive history of sexual offending, with 29 previous convictions for similar crimes against children, dating back to 1969. Psychological assessments indicated Cheesman posed a high risk of reoffending. Despite the defendant's age and some health issues, the court found that these factors did not mitigate the risk he posed.

After considering the purposes and principles of sentencing, including denunciation, deterrence, protection of the public, and rehabilitation, the court determined that a sentence of preventive detention was necessary to protect the community. The court accepted the health assessors' reports which indicated Cheesman was likely to commit another qualifying sexual offence if released. Accordingly, the court sentenced Cheesman to preventive detention with a minimum term of five years, reflecting the gravity of the offence and the risk he posed to society.

Orders