R v Exley - [2024] NZHC 48

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2022-035-121

[2024] NZHC 48

THE KING

v

DAMON JOHN EXLEY

Counsel:
S A H Bishop and J G Avia for Crown

L C Ord and S S Pohiva for Defendant for the filing of written submissions and the defendant in person at hearing

Sentencing:

1 February 2024

SENTENCING NOTES OF RADICH J

Preface

[1] A separate oral decision, at [2024] NZHC 61, describes the circumstances in which the sentencing of the defendant proceeded without his physical presence in the courtroom and on a self-represented basis.

Introduction

[2] Mr Exley, you appear for sentence today on charges of abduction for the purposes of sexual connection,1 assault with a weapon,2 and sexual violation by rape,3 having been found guilty of these charges by a jury. You appear also on charges of

1      Crimes Act 1961, s 208(1)(b) (maximum penalty of 14 years’ imprisonment).
2      Section 202C(1)(b) (maximum penalty of five years’ imprisonment).
3      Sections 128(1)(a) and 128B (maximum penalty of 20 years’ imprisonment).

R v EXLEY [2024] NZHC 48 [1 FEBRUARY 2024]

unlawfully taking a motor vehicle,4 burglary,5 and escaping lawful custody,6 to which you pleaded guilty before trial.

[3] The Crown submits that preventive detention is the appropriate sentence. If an order of that sort was made, then you would be subject to a minimum period of imprisonment, after which you would remain imprisoned until the New Zealand Parole Board considers that you no longer pose a significant and ongoing risk to the community. The purpose of preventive detention is to protect the community from offenders who pose such a risk, rather than to punish.7

[4] Your counsel have submitted, when they were instructed by you and in the written submissions they filed, that a lengthy determinate or “fixed” sentence is preferable.

[5] You committed the offences we are concerned with today during and following your escape from Rimutaka Prison where you were already serving a sentence of preventive detention for convictions on offences which included abduction for the purpose of sexual connection and assault with intent to commit sexual violation by rape. Therefore, irrespective of the sentence that I impose today, you will remain subject to that existing preventive detention sentence, the minimum period of imprisonment for which expired in 2014. However, an additional preventive detention sentence may be imposed if the relevant statutory criteria are met. As the Court of Appeal has said, each offence requires an appropriate response even if it may have no practical effect where, for example, it is of a lesser or equal duration to another sentence.8

[6] There can be no doubt that your current offending must result in a sentence of imprisonment. The primary issue for the Court is whether a finite sentence of imprisonment or a successive sentence of preventive detention should be imposed.9

4 Section 226(1)(a) (maximum penalty of seven years’ imprisonment).
5 Section 231(a) (maximum penalty of 10 years’ imprisonment).
6…

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 Exley

Details

AGLC: R v Exley [2024] NZHC 48
Case: [2024] NZHC 48
Decision Date: 1 February 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Damon John Exley was sentenced for multiple charges, including abduction for the purposes of sexual connection, assault with a weapon, and sexual violation by rape. Exley had escaped from Rimutaka Prison where he was serving a sentence of preventive detention for previous convictions, and committed the current offences following his escape. The court was required to decide whether a finite sentence of imprisonment or a successive sentence of preventive detention was appropriate.

The court determined that Exley's current offending must result in a sentence of imprisonment. The court considered three matters: the description of the offending, the calculation of a starting point for a finite sentence, and whether preventive detention was appropriate. The court found Exley's offending to be serious and with multiple aggravating factors, such as the use of a weapon and the detention of the victim for several hours. The court calculated a starting point of 11 years and 10 months' imprisonment, which was reduced to 11 years to give effect to the totality principle. The court found that Exley's history disclosed a pattern of serious offending, the harm to the community was serious, and there was information indicating a tendency to commit serious offences in the future. The court also found that Exley had failed to make adequate efforts to address the causes of his offending. Based on these findings, the court concluded that preventive detention was the only appropriate measure to ensure the community's protection. Exley was sentenced to preventive detention with a minimum period of imprisonment of nine years.

In practical terms, Exley's preventive detention sentence with the minimum period imposed is the operative sentence.

Orders