R v F HC Auckland CRI-2010-057-2616

[2011] NZHC 878

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES) OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S

139 CRIMINAL JUSTICE ACT 1985.  ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES) OR IDENTIFYING PARTICULARS OF DEFENDANT. ORDER PROHIBITING PUBLICATION OF THE NAME OF THE COMPLAINANT'S WORKPLACE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-057-2616

THE QUEEN

v

F

Hearing:         26 July 2011

Counsel:         N Speir for Crown

M Mason for Prisoner

Judgment:      26 July 2011

SENTENCING NOTES OF TOOGOOD J

UPON CORRECTION OF SENTENCE PASSED ON 12 JULY 2011

Solicitors:

N Speir, Meredith Connell, Auckland:  [email protected]

M Mason, Barrister, Papakura:  [email protected]

R V F HC AK CRI-2010-057-2616 26 July 2011

[1]      F, you have been brought back before the Court for correction of the sentence which was passed on you on 12 July 2011.  I should say that I have had the benefit of receiving written material from counsel and having a telephone discussion with them yesterday just to make sure that the correct factual and legal position was properly understood.

[2]      The application to correct the sentence has been made by the Crown on the basis that both Crown counsel and counsel for the defence incorrectly advised me at the  time  of  your  sentencing  that  the  three  strikes  provision  of  s 86B  of  the Sentencing Act 2002 (“the Act”) did not apply.   It seems that counsel may have misunderstood the position in terms of when the three strikes provisions came into force and how they were to be applied.

[3]      One of the charges on which you were convicted alleged unlawful sexual connection  on  a  date  between  1 April 2010  and  30 June 2010,  and  that  period straddled  the  date  on  which  the Act  came  into  force,  which  was  1 June 2010. Although you pleaded guilty to that charge, the summary of facts does not identify the precise date upon which the offence occurred.  It is not possible, therefore, to say that the offence was committed on or after 1 June 2010 when, as I say, the three strikes provisions of s 86A – 86I came into effect.

[4]      In these circumstances, it is necessary to resolve the uncertainty in a manner which is the most favourable to you.  That means that the charge of unlawful sexual connection under CRN 10057002474 should not be regarded as a stage-1 offence.

[5]      After discussing these matters with counsel, I am satisfied that there are ten serious violent offences, as defined in s 86A of the Act, which occurred on or after

1 June 2010, on which you were convicted.  As you were over the age of 18 years at the time of those offences, you are eligible for a stage-1 warning under s 86B of the

Act. These are:

A  representative  charge  of  unlawful  sexual  connection  between

28 May 2010 and 4 June 2010. Although the period during which this offending  was  alleged  to  have  occurred  begins  before  the  new

provisions came into force,  you pleaded guilty to a representative charge on the basis of a summary of facts which indicates that you offended  “regularly”  in  this  manner  up  to  4 June 2010.    And  I understand through your counsel that you acknowledge that s 86B

applies;

Rape between 4 June 2010 and 11 June 2010 (CRN ... 2497);         Indecent assault on 21 June 2010 (CRN ... 2499);

Rape on 21 June 2010 (CRN ... 2500);

A   representative    charge    of    rape    between    21 June 2010    and

3 July 2010 (CRN ... 2501);

Rape on 4 July 2010 (CRN ... 2504);

Unlawful sexual connection on 9 July 2010 (CRN ... 2508);         Rape on 9 July 2010 (CRN ... 2509);

Indecent assault on 9 July 2010 (CRN ... 2510); and

Indecent assault on 10 July 2010 (CRN ... 1793).

[6]      Because you have not previously been convicted of any relevant offending, these are Stage-1 offences.  Although the warnings ought to have been given at the time the convictions were entered, I consider that the intention and purpose of the legislation is met by administering the appropriate warnings at this stage.

[7]      Therefore, in respect of each of the ten offences which I have mentioned, I warn you that if you are convicted of and sentenced to imprisonment for any serious violent offence other than murder that is committed after this warning, you will serve that sentence without parole or early release.   If you are convicted of murder committed after this warning, you will be sentenced to life imprisonment, and you

will serve that sentence without the possibility of parole unless that would be manifestly unjust.  In that event, the Judge must sentence you to a minimum term of imprisonment.

[8]      You will be given a written notice outlining the warning and listing what the law says are serious violent offences for these purposes.

[9]      In all other respects, I confirm the sentences and the minimum period of imprisonment imposed upon you on 12 July 2011.

[10]     I am sorry that it was necessary to bring you back to the Court to deal with these matters, but it is better that we ensure that the intention of Parliament in enacting the three strikes law is  given proper effect,  and  that  you  are properly warned of the potential consequences if you re-offend.

[11]     Please stand down.

...............................................

Toogood J