R v Downing - [2021] NZHC 159

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-092-007753

[2021] NZHC 159

THE QUEEN

v

EDWIN JOHN DOWNING

Hearing: 11 February 2021

Appearances:

L P Radich and C E Best for the Crown

P J Kaye and S D Withers for the Defendant

Judgment:

11 February 2021

SENTENCING NOTES OF CAMPBELL J

Solicitors/Counsel:
Kayes Fletcher Walker Limited, Auckland Vulcan Chambers, Auckland

R v DOWNING [2021] NZHC 159 [11 February 2021]

Introduction

[1] Mr Downing, you appear for sentence having been found guilty, following a jury trial, of eleven charges of sexual offending against two young people. I am going to refer to the two victims as D and B. Both are biologically male, but B now identifies as female, and I will refer to her as such.

[2]In relation to the first victim, D, the offending was:

(a)One charge of sexual violation by unlawful sexual connection;1

(b)Two charges of doing an indecent act on a young person under 16;2

(c)One charge of meeting a young person following sexual grooming;3

[3]In relation to the other victim, B, the offending was:

(a)Six charges of sexual connection with a young person;4

(b)One charge of meeting a young person following grooming.5

Facts

[4] You met D near a school in south Auckland on 3 July 2018. About ten days earlier you had connected with him through Grindr, a smartphone social networking application used particularly by LGBTI people. At the time, D was 14 years old. On 24 June 2018, you participated in a video call with him, during which you exposed your penis and rubbed it to an erection.

[5] Two days later, D turned 15 years old. In the course of your exchanges, you offered him cash in exchange for engaging in sexual activity. That offer led to the meeting on 3 July 2018. D got into your car and you drove to Sutton Road, near Drury.

1      Crimes Act 1961, s 128(1)(b). Maximum penalty: 20 years’ imprisonment.
2      Crimes Act 1961, s 134(3). Maximum penalty: seven years’ imprisonment.
3      Crimes Act 1961, s 131B. Maximum penalty: seven years’ imprisonment.
4      Crimes Act 1961, s 134(1). Maximum penalty: 10 years’ imprisonment.
5      Crimes Act 1961, s 131B. Maximum penalty: seven years’ imprisonment.

On the way, you touched his thigh and attempted to work your hand into his shorts. At Sutton Road you parked the car, removed your lower clothing, took D’s hand and placed it on your penis. You took his head and pushed it down on to your penis. When he resisted, you did it again. At that point, you acknowledged that D was resisting your activities and you drove him home.

[6] In relation to your activity with D you were found guilty of meeting a young person following sexual grooming, two counts of sexual conduct with 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 Downing

Details

AGLC: R v Downing [2021] NZHC 159
Case: [2021] NZHC 159
Decision Date: 11 February 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Edwin John Downing was sentenced following his conviction on eleven charges of sexual offending against two young people, D and B. The charges against Downing included sexual violation by unlawful sexual connection, doing an indecent act on a young person under 16, meeting a young person following sexual grooming, and sexual connection with a young person. The court was required to determine the appropriate starting point for the sentence, whether the sentences should be cumulative or concurrent, and the effect of Downing's personal circumstances on the sentence. The court also had to consider the gravity of the offending and Downing's degree of culpability.

The court found that Downing's offending against D was at the lower end of the spectrum identified in the Court of Appeal case R v AM, and that the applicable bands in the AM judgment were the rape bands. The court agreed with the Crown's submission that a starting point of six years was appropriate for the offending against D. In relation to the offending against B, the court found that it was not as serious as that in similar cases, and that a starting point of three years' imprisonment was appropriate. The court determined that the sentences should be cumulative, as the offending was against different and unrelated victims. The court also considered Downing's personal circumstances, including his prior good character and denial of responsibility for the offences. The court imposed a sentence of six years and six months' imprisonment, with the sentences relating to D and B to be served concurrently, and the sentences relating to D imposed cumulatively on the sentences relating to B.

The final orders of the court included the imposition of a sentence of six years and six months' imprisonment for Downing, with the sentences relating to D and B to be served concurrently, and the sentences relating to D imposed cumulatively on the sentences relating to B. Downing was also required to register as a sex offender under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016.

Orders