-where sentences 1-6 are concurrent among themselves, but cumulative on sentences 7-9 (which are concurrent among themselves), making a total sentence of three years, ten months’ imprisonment.
D The destruction order is confirmed.
REASONS OF THE COURT
(Given by Chambers J)
Table of Contents
Para No
Sexual offending and pornography [1] Issues on the appeal [10] Should we extend the time for appealing? [13] Did justice miscarry as a result of the trial process? [27] Was the sentence manifestly excessive? [41] Category A – making and distributing pornography [48] Category B – possessing pornography [55] Summary of categories A and B [56] Category C – indecent assaults on FS [58] Conclusion [65]
Result [68]
Sexual offending and pornography
[1] A 19 year-old foreign student (FS) home-stayed with Stephen Clode, the appellant, and his wife and daughter. On 15 March 2005, she went to the police to complain about several instances when Mr Clode had indecently assaulted her. She also told the police she had regularly used Mr Clode’s computer. On occasions, she had opened documents which Mr Clode had saved on the computer. These documents included pictures of children engaged in sexual acts with adults.
[2] She also told the police about three young children who, for a time, had lived at the house. We shall call them A, B and C. They were aged 10, 8 and 4 respectively. FS said she had on one occasion seen Mr…
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 Clode
Sign in free to access the full text
Details
AGLC
R v Clode [2008] NZCA 421
Case
[2008] NZCA 421
Decision Date
CaseChat Overview and Summary
In this case, the Court of Appeal of New Zealand was asked to decide whether to extend the time for appealing in the case of Stephen Thomas Clode, who was convicted of various offences including indecent assault, making and distributing child pornography, and possessing pornography. The court was also asked to decide whether justice had miscarried as a result of the trial process, and whether the sentence was manifestly excessive. The court found that the application to extend time for appealing should be granted, as the appellant was partly responsible for the delay, but so were others including his former counsel, the Legal Services Agency, and perhaps his current counsel. The court also found that justice had not miscarried as a result of the trial process, as the criticism of the former counsel's performance at trial had no merit. However, the court found that the sentence was manifestly excessive, and so it was allowed. The court restructured the sentencing package and imposed a total sentence of three years, ten months' imprisonment, with individual sentences set forth in order C. The destruction order made by the judge was also confirmed.