R v Dargaville - [2012] NZHC 490

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT T PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-019-010235 [2012] NZHC 490

THE QUEEN

v

HARDING ANTHONY DARGAVILLE

Hearing: 9 March 2012

Counsel: N Chisnall and Mr Gurnick for Prisoner
P V Cornege for Crown

Judgment: 9 March 2012

SENTENCE OF POTTER J

R V DARGAVILLE HC HAM CRI-2010-019-010235 [9 March 2012]

Solicitors: Almao Douch, Hamilton – pvc@almaodouch.co.nz
Public Defence Service – nick.chisnall@justice.govt.nz

Introduction

[1] Mr Dargaville appears for sentence for serious sexual offending. He has entered guilty pleas to representative charges of sexual violation by rape, sexual violation by unlawful sexual connection and doing an indecent act on a child under 12.

Factual background

[2] The offending relates to a single victim T. I am going to call her T because she is entitled to confidentiality. It covers a period of two years between 1 April
2002 and 1 April 2004. Mr Dargaville was residing in Te Kuiti between 2000 and

2003. He became friends with a local man and his partner who regularly had young family members to stay for long periods of time. When Mr Dargaville met the couple, they had five children in their care including T who was aged eight to 10 years old.

[3] Mr Dargaville would regularly visit the couple. The children began to refer

to him as “Uncle Hardy”.

[4] On two separate occasions whilst sitting at the kitchen table with T, Mr

Dargaville fondled her breasts and genital area outside her clothing.

[5] After the couple’s house was subject to a fire the family moved to an address near Te Awamutu. Mr Dargaville helped them to move to this address. During the time that they lived at this address T was aged between 10 and 11 years old. She recalls that Mr Dargaville’s behaviour towards her became progressively worse from that point.

[6] Mr Dargaville regularly visited the new address, travelling from his home in Te Kuiti. He would often stay the night either in the lounge or in the bedroom that was shared by T with another young girl. T slept in the upper bunk of a shared bunk bed.

[7] T would be woken by Mr Dargaville rubbing her thighs with his hand and moving his hand up her dress to rub her stomach. He would then move his hand under her underwear and rub and repeatedly penetrate her vagina with his finger.

[8] Mr Dargaville admitted to doing this on four separate occasions (these events give rise to the representative charge of sexual violation by unlawful sexual connection).

[9] The offending progressed to a point where Mr Dargaville would carry T from her bed and place her in his bed. He would kiss and tell her to be quiet before removing her underwear and digitally penetrating her vagina. He would then penetrate her vagina with his penis. While doing so he felt her breasts outside of her clothes.

[10]…

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 Dargaville

Details

AGLC: R v Dargaville [2012] NZHC 490
Case: [2012] NZHC 490
Decision Date: 9 March 2012

CaseChat Overview and Summary

In the case of R v Dargaville, the defendant was convicted of multiple charges of sexual offending against a child. The case involved significant issues of sentencing, including the appropriate starting point for the sentence, the discount for the defendant's poor health, and the imposition of a minimum period of imprisonment. The court also had to consider the possibility of a sentence of preventive detention. The starting point for sentencing was determined to be 16 years imprisonment, at the bottom of rape band four, taking into account the aggravating features of the offending. The defendant's poor health warranted a discount of approximately 15 per cent, and a further discount of 25 per cent was allowed for his guilty plea. The end sentence was calculated to be 10 and a half years imprisonment, with a minimum period of imprisonment of six years. The court concluded that a sentence of preventive detention was not appropriate, as a lengthy determinate sentence combined with the possibility of an extended supervision order would adequately protect the community.

Orders