R v de Kwant - [2017] NZHC 2291

IN ACCORDANCE WITH THE REQUIREMENTS OF THE CRIMINAL PROCEDURE ACT S 203(3)
PARTS OF PARAGRAPHS [5], [6], [7], [11], [12], [13], [17], [32], [33] AND [53] HAVE BEEN REDACTED

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-009-1518 [2017] NZHC 2291

THE QUEEN

v

RENE MISCHELLE DE KWANT

Hearing: 21 September 2017

Appearances:

C J Bernhardt for Crown
E Bulger for Defendant

Judgment:

21 September 2017

SENTENCING DECISION OF MANDER J

Three strikes warning

[1] Before I proceed to impose sentence I am required by the Sentencing Act to give you what is described as the “three strikes warning”.

[2] Given your conviction on the charge of committing an indecent act on a boy under 12 you are now subject to the three strikes law, and I am going to give you a
warning of the consequences of another serious violence conviction, as it is so termed.

R v DE KWANT [2017] NZHC 2291 [21 September 2017]

You will also be provided with a written notice which contains a list of these serious violent offences.

[3] The warning is this. If you are convicted of any one or more serious violent offences other than murder committed after this warning and if the Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event, the Judge must sentence you to a minimum term of imprisonment.

Introduction

[4] Mr De Kwant you are for sentence this morning on a representative charge of committing an indecent act on a boy under 12 to which you have pleaded guilty. Because of your past similar offending on children your sentencing was transferred to this Court for consideration of a sentence of preventive detention.

The offending

[5] The young victim of your offending is the son of a close friend of your partner. In September 2014, at a birthday function, you described to the boy’s mother that you felt you had a personal connection with the child. She was unaware of your history of offending against children. From around that time you cared for the victim on numerous occasions, [...] Approximately once a month, from June 2015 to January
2017, you would be alone with the victim [...]. It was on these occasions that you took the opportunity to offend against the boy.

[6] On the first of these [...] you pulled the victim’s pants down and masturbated him. Similar offending then took place on each subsequent occasion when you were alone with the victim. It is estimated that this occurred at least on 12 occasions over the 18 month period of your offending against the child.

[7]…

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 de Kwant

Details

AGLC: R v de Kwant [2017] NZHC 2291
Case: [2017] NZHC 2291
Decision Date: 21 September 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, the defendant Rene Michelle De Kwant was sentenced for committing an indecent act on a boy under 12. The defendant pleaded guilty to the charge, and due to her history of similar offences, the sentencing was transferred to the High Court for consideration of a sentence of preventive detention. The defendant had offended against the victim, who was the son of a close friend of her partner, on multiple occasions over an 18-month period. The court considered the aggravating features of the offending, the defendant's previous history of sexual offending against children, and her personal circumstances. The court found that the defendant was likely to commit another qualifying sexual offence if released at the expiry of a finite sentence. Therefore, the court decided to impose a sentence of preventive detention with a minimum period of imprisonment of five years, to protect the community from the significant risk the defendant posed.

The court's decision was based on the defendant's history of serious offending against children, the failure of previous treatment and interventions to stop her offending in the long term, and the concerns expressed by psychologists about her potential rehabilitation. The court also took into account the seriousness of the harm caused to the victim and the community, and the need to protect the public from the risk of the defendant reoffending. The court acknowledged the defendant's willingness to engage in further treatment and intervention, but noted that past intensive treatment had not prevented her from continuing to offend. The court found that a sentence of preventive detention was the appropriate response to the defendant's sexual offending.

Orders