R v Cudby - [2012] NZHC 636

PUBLIC VERSION

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT
1985. EXISTING SUPPRESSION ORDER RE LOCATION OF PREVIOUS OFFENDING REMAINS IN PLACE.

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2011-067-000280 [2012] NZHC 636

THE QUEEN

v

MAURICE WILLIAM CUDBY

Hearing: 2 April 2012

Counsel: L C Rowe for the Crown
C P Brosnahan for the Accused

Sentence: 2 April 2012

SENTENCING REMARKS OF MALLON J

Introduction

[1] You appear for sentence having pleaded guilty to the following charges:

(a) A representative count of indecently assaulting a boy under 12 years;1

1 Section 140(1)(a), Crimes Act 1961(maximum penalty: 10 years imprisonment).

R v CUDBY HC WANG CRI 2011-067-000280 [2 April 2012]

(b)A representative count of inducing a boy under 12 to do an indecent act;2

(c) Two representative counts of sexual violation by unlawful sexual connection (involving the mouth and genitalia);3

(d) A representative charge of sexual violation by unlawful connection

(involving penetration of the anus by the penis);4

(e) A representative charge of indecently assaulting a boy between 12 and

16 years;5

[2] You are here for sentencing in this Court because the Crown is seeking a sentence of preventive detention.

Circumstances of offending

[3] The charges relate to offending on one complainant over the period December 1998 and December 2007. The offending commenced when the complainant, a boy, was 6 or 7 years old and ended when he was about 15 years old.
During this period you were 58 to 68 years old.

[4] You [ suppressed.] The offending began when you encouraged the boy to touch your erect penis when you were in the shower. This occurred on a number of occasions over the period of about a month. Following on from that you began to play with the boy’s penis. This included masturbating him and sucking his penis.

[5] You also encouraged the boy into your bed. You would masturbate him and have him masturbate you. You would also perform oral sex on him and have him do

2      Section 140(1)(c), Crimes Act 1961 (maximum penalty: 10 years imprisonment).
3      Section 128(1)(b), Crimes Act 1961 (maximum penalty: 20 years imprisonment).
4      Section 128(1)(b), Crimes Act 1961 (maximum penalty: 20 years imprisonment).
5      Section 140A(1)(a), Crimes Act 1961 (maximum penalty: 7 years imprisonment).

the same to you. This would happen about three or four mornings a week until about
May 2002. [suppressed]

[6] [Suppressed] During [suppressed], the offending resumed. Again it would involve masturbating the boy and performing oral sex on him and having him reciprocate on you. The offending would occur in the [suppressed.]

[7] When the boy was 12 your sexual offending progressed to anal intercourse. Mostly this involved you performing anal intercourse on the boy. This occurred on a number of occasions (the boy recalls it as being about fifteen times whereas you say it was not as often as that – the exact number of times this occurred is not, however, material for…

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 Cudby

Details

AGLC: R v Cudby [2012] NZHC 636
Case: [2012] NZHC 636
Decision Date: 2 April 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Wanganui Registry, the defendant, Maurice William Cudby, was sentenced for multiple counts of sexual offenses against a boy under 12 years old, including indecent assault, inducing a boy to do an indecent act, and sexual violation by unlawful sexual connection. Cudby had previously been convicted for similar offenses against young girls and had served a prison sentence, during which he completed a sex offender treatment course. Despite this, he reoffended shortly after his release and continued to offend until the victim disclosed the abuse in 2011. The court considered whether to impose a sentence of preventive detention, which can only be done if the court is satisfied that the defendant is likely to commit another qualifying sexual offense if released. The court found that although Cudby had a history of sexual offending against children and had failed to benefit from previous treatment, his advanced age and the potential for an extended supervision order upon his release provided sufficient protection for society. Therefore, the court decided against preventive detention and imposed a finite sentence of 12 years imprisonment, with a minimum term of 6 years, and concurrent terms of imprisonment for the other charges. The court also noted the need for suppression orders to protect the identity of the victims and the location of the offenses.

Orders