R v G - [2021] NZHC 218

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NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-004-3578

[2021] NZHC 218

THE QUEEN

v

“G”

Hearing: 19 February 2021

Appearances:

S McMullan for the Crown J N Olsen for the Defendant

Judgment

19 February 2021

SENTENCING NOTES OF POWELL J

R v “G” [2021] NZHC 218 [19 February 2021]

[1]You appear for sentence today having pleaded guilty to:

(a)two charges of sexual violation by unlawful sexual connection;1 and

(b)three charges of doing an indecent act on a child under 12 years.2

Approach to sentencing

[2] I begin my task today by explaining what I have to do and my approach to sentencing you. The Sentencing Act 2002 sets out the purposes and principles of sentencing. The primary purposes of sentencing in this case are to hold you accountable for the harm that you have done;3 to promote in you a sense of responsibility for, and acknowledgement of, that harm;4 to denounce your conduct;5 to deter you and others from engaging in such conduct;6 and to protect the community.7

[3] In turn, the principles of sentencing that are particularly relevant are: the need to take into account the gravity of your offending, including the degree to which you are responsible;8 the seriousness of that offending;9 the impact of the offending and the impact of your offending on the victims.10 It is also necessary to consider consistency with appropriate sentencing levels in other cases.11 I note this Court is required to impose the least restrictive outcome appropriate in the circumstances.12

[4] Determining an appropriate sentence for you involves two steps.13 First, I must work out a finite sentence, in other words a specified number of years in prison. Once I have done that I must then decide whether that sentence is appropriate or whether I should impose a sentence of preventive detention, in which case you would be subject

1      Crimes Act 1961, ss 128(1)(b) and 128B. Maximum penalty 20 years’ imprisonment.
2      Crimes Act 1961, s 132(3). Maximum penalty 10 years’ imprisonment.
3      Sentencing Act 2002, s 7(1)(a).
4      Section 7(1)(b).
5      Section 7(1)(e).
6      Section 7(1)(f).
7      Section 7(1)(g).
8      Section 8(a).
9      Section 8(b).
10     Section 8(f).
11     Section 8(e).
12     Section 8(g).
13     Moses v R [2020] NZCA 296.

to a minimum period of imprisonment and only thereafter released at the discretion of the Parole Board when it determines that you are no longer a threat to the safety of the community.

Setting the starting point

[5] In determining the appropriate finite sentence, I begin by calculating what is referred to as the “starting point”, a term that you have heard this morning. The starting point is a term of imprisonment that…

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 G

Details

AGLC: R v G [2021] NZHC 218
Case: [2021] NZHC 218
Decision Date: 19 February 2021

CaseChat Overview and Summary

In the case of The Queen v "G", the defendant, referred to as "G", appeared for sentencing after pleading guilty to two charges of sexual violation by unlawful sexual connection and three charges of doing an indecent act on a child under 12 years. The court was required to determine an appropriate sentence for the defendant, taking into account the purposes and principles of sentencing as outlined in the Sentencing Act 2002. The primary purposes of sentencing in this case were to hold the defendant accountable for the harm caused, promote a sense of responsibility, denounce the conduct, deter the defendant and others from engaging in such conduct, and protect the community. The principles of sentencing that were particularly relevant included the gravity of the offending, the seriousness of the offending, the impact of the offending on the victims, and consistency with appropriate sentencing levels in other cases.

The court considered the appropriate sentence for the defendant in two steps. First, the court calculated a finite sentence, in other words, a specified number of years in prison. Once the court had determined the finite sentence, it had to decide whether that sentence was appropriate or whether it should impose a sentence of preventive detention. The court also considered the minimum period of imprisonment, which would be longer than the period otherwise applicable under the Parole Act 2002 if the court was satisfied that the period was insufficient for certain purposes.

After considering the defendant's personal circumstances, both positive and negative factors, the court concluded that a sentence of preventive detention was not appropriate in this case. The court found that the risks the defendant posed to the community were not unmanageable and that a determinate sentence combined with the extended supervision order post-release would be able to provide effective mitigation of the defendant's risk sufficient to protect the public. The court also found that a minimum period of imprisonment was not necessary in this case.

The defendant was sentenced to three years and three months' imprisonment for the two charges of sexual violation by unlawful sexual connection, and on the three charges of doing an indecent act on a child under 12 years, the defendant was sentenced to 18 months on each of those charges. All of these terms were to be served concurrently. The written version of these sentencing notes would be issued in a redacted form, as the defendant's name was previously permanently suppressed in 2012 to protect the victims of the defendant's offending.

Orders