R v D - [2012] NZHC 629

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT
1985. NAME SUPPRESSION OF D TO PROTECT THE IDENTITY OF THE COMPLAINANT.

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2011-083-2192 [2012] NZHC 629

THE QUEEN

v

D

Hearing: 2 April 2012

Counsel: L Rowe for the Crown
J Rowan QC and R Simon for D Sentence: 2 April 2012
SENTENCING REMARKS OF MALLON J

Introduction

[1] [D], can you please stand. I need to go through a number of matters in explaining to you the sentence that I need to pass on you. You appear for sentencing today, having pleaded guilty to four counts of sexual violation by rape, one of which
was representative.[1]

R v D HC WANG CRI 2011-083-2192 [2 April 2012]

[1] Section 128(1)(a) and 128B of the Crimes Act 1961.

[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 against one complainant, your daughter, over the period August 2008 to May 2010. The offending commenced when your daughter was about 14 years old and ended when she was about 16 years old. The offending occurred in the home that you shared with your daughter and her mother. All the offending occurred in much the same circumstances.

[4] The first incident occurred between August 2008 and 2009. You, your daughter and the daughter’s mother had consumed alcohol and cannabis. Your daughter was intoxicated and fell asleep on the couch. She awoke to you touching her and you proceeded to take off her pants and underwear and to rape her. Afterwards you pulled her pants back up and left the room.

[5] The second incident was similar. It occurred in about February 2009. You, your daughter and other family members had been drinking alcohol, the complainant fell asleep on the couch and awoke to find you rolling her onto her stomach and removing her pants. You proceeded to rape her and afterwards left the room.

[6] The third incident took place in about March 2009. You, your daughter and other family members had all been drinking alcohol. Your daughter went to sleep in a double bed with her older sister. In the early hours of the morning, you got into bed between your daughter and her sister, your other daughter. You removed her shorts and underwear which woke her up. You proceeded to rape her. Afterwards you stayed in the bed for awhile before leaving the room.

[7] The representative charge related to events between 13 August 2008 and May

2010 in which further rapes occurred in similar circumstances on dates that the complainant is unable to specify but which you admitted to when you were interviewed by the police.

[8] The offending was disclosed on 23 September 2010 and, as mentioned, you admitted that offending when you were interviewed on 18 October 2011.

Victim impact

[9] There is a…

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 D

Details

AGLC: R v D [2012] NZHC 629
Case: [2012] NZHC 629
Decision Date: 2 April 2012

CaseChat Overview and Summary

D pleaded guilty to four counts of sexual violation by rape, one of which was representative. The Crown sought a sentence of preventive detention. The court had to decide whether a finite sentence or preventive detention was appropriate. The court found that the aggravating factors in the offending warranted a starting point at upper band three or lower band four from the Court of Appeal guideline judgment, R v AM. This was a starting point of between 15 and 16 years' imprisonment. The court considered the factors personal to D, including his previous convictions for assault with intent to rape, and decided on a starting point of 15 years. The court deducted 25% for D's guilty plea and a further three months for his remorse, resulting in an end sentence of 11 years and three months' imprisonment. The court then turned to the question of preventive detention. The court found that D's offending history showed a pattern of serious offending, and that his offending had caused serious psychological harm to the community. The court considered the risk of D committing serious offences in the future and found that he was at high risk of reoffending, most likely to take the form of rape of known females who may be related to him. The court also considered the issue of interventions and found that D was motivated to participate in intensive group treatment and that a combination of treatment and interventions would substantially reduce his reoffending risk. The court concluded that a lengthy determinate sentence was preferable to a sentence of preventive detention, if the determinate sentence provided adequate protection for society. The court imposed a finite sentence of 11 years' imprisonment with a minimum term of imprisonment of six years. The court also imposed a non-publication order in relation to the sexual abuse on D to protect the identity of his daughter.

Orders