R v Fairburn - [2014] NZHC 120

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2013-088-000461 [2014] NZHC 120

THE QUEEN

v

LINDSAY ROBERT FAIRBURN

Hearing: 11 February 2014

Appearances:

M B Smith for Crown
S K Ellis for Defendant

Judgment:

11 February 2014

SENTENCING NOTES OF ANDREWS J

Solicitors:
Crown Solicitor, Whangarei
S K Ellis, Barrister, Whangarei

R v FAIRBURN [2014] NZHC 120 [11 February 2014]

Charges

[1] Mr Fairburn, you appear for sentencing today having pleaded guilty to one representative charge of rape of a girl under the age of 12, one (again) representative charge of inducing a girl under 12 to do an indecent act, and one charge of indecent assault on a girl aged between 12 and 16. Your offending was between 1970 and
1985. Under the law that applied at the time, you are subject to a maximum sentence of 14 years imprisonment on the charge of rape. The maximum sentence on the charge of inducing an indecent act is 10 years, and the maximum sentence on the charge of indecent assault is seven years.

[2] You entered guilty pleas to the three charges in this Court on 28 November

2013. Convictions were not entered at that hearing. I now formally convict you on each of the charges. I note that I am not required to issue a “three strikes” warning, as your offending occurred before the relevant legislation came into force.

Relevant facts

[3] The victim is your daughter. From the time she started school, you would take her from her bed and carry her to your bed. You would put your hand inside her pants and feel around her vagina. You also got her to masturbate you. This happened in every room of the house. Further, you would ejaculate on her face and in her mouth.

[4] On the occasions when you took the victim to your bed, you would also remove her lower clothing, get on top of her and you raped her. She would scream in pain. Those occasions have led to the representative rape charge.

[5] In 1981 your children went to live with their mother. In late 1983 the victim returned to live with you and your partner. In late 1983, the victim and her step brother were left home alone. They located alcohol and began drinking it. They became intoxicated. You came home, stripped the victim’s clothes off her and attempted to sober her up in the bath. You laid the victim on the floor of the bathroom and locked the door. You began masturbating, and repeated “just try it one more time” to the victim. You removed your lower clothing and got on top of her.

The victim screamed “not again, not again.” Your partner arrived home, you told her that you were only trying to sober the victim up and you got her dressed.

[6] The victim left the family home in 1983, after having made a complaint about you, which was dealt with by way of a family meeting with…

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 Fairburn

Details

AGLC: R v Fairburn [2014] NZHC 120
Case: [2014] NZHC 120
Decision Date: 11 February 2014

CaseChat Overview and Summary

Lindsay Robert Fairburn appeared before the High Court of New Zealand, Whangarei Registry, for sentencing after pleading guilty to multiple charges of sexual offending against his daughter, including rape and indecent assault, committed between 1970 and 1985. The court needed to decide on an appropriate sentence, considering the gravity of the offences, the vulnerability of the victim, and the mitigating factors presented.

The court established a starting point of eight years and six months imprisonment, considering the inherent violence and psychological harm of the crimes, the abuse of trust, and the repeated nature of the offending. Various mitigating factors were also considered, including Fairburn's guilty plea, his age, health issues, and the fact that he had not offended since his previous sentence in 1993. The court found that a discount of 12 months for age, another 12 months for not offending since his previous sentence, and a 25% discount for the guilty plea resulted in a final sentence of four years and nine months imprisonment, to be served concurrently.

The court imposed a sentence of four years and nine months imprisonment on the charge of rape, three years on the charge of inducing an indecent act, and one year on the charge of indecent assault. The effective sentence was four years and nine months imprisonment. Following a request by the Crown and consent from the victim, the court lifted the statutory prohibition on the publication of Fairburn’s name.

Orders