R v Garraway - [2013] NZHC 611

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OR IDENTIFYING PARTICULARS OF THE VICTIM PURSUANT TO S 200
CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2010-019-002210 [2013] NZHC 611

THE QUEEN

v

MARK GARRAWAY

Hearing: 26 March 2013

Counsel: J M O’Sullivan for the Crown
R M Mansfield for the Prisoner

Judgment: 26 March 2013

SENTENCING NOTES OF WYLIE J

Distribution:
J M O’Sullivan: jmo@almaodouch.co.nz
R Mansfield: ron.mansfield@22lorne.co.nz

R V GARRAWAY HC HAM CRI 2010-019-002210 [26 March 2013]

[1] Mr Garraway, you may remain seated until I ask you to stand.

[2] Mr Garraway, you appear for sentence today, having been found guilty following trial before a jury, of the following offences:

(a) Sexual violation by rape;

(b) Sexual violation by unlawful sexual connection (digital penetration); (c) Sexual violation by unlawful sexual connection (oral sex);
(d) Indecent assault.

Each of the sexual violations is an offence pursuant to s 128B of the Crimes Act

1961. Each carries a maximum penalty of 20 years’ imprisonment. The indecent assault is an offence pursuant to s 135 of the Crimes Act. It is subject to a maximum penalty of seven years’ imprisonment.

[3] Your trial took place in the District Court. You have been sent to this Court for sentencing because the District Court considered that a sentence of preventive detention might be appropriate.

Background Facts

[4] While you filed a memorandum for your sentencing, which made it clear that you dispute much of the factual background, Mr Mansfield, appearing on your behalf today, quite properly accepted that you must be sentenced on the facts which are consistent with the jury’s verdicts.

[5] The offending occurred sometime in mid-2002. The victim was 17 years of age at the time. She resided in Paeroa. Her sister apparently worked as a stripper. It seems that the sister gave the victim’s telephone number to you. You contacted the victim and invited her to travel with you from Paeroa to Hamilton. You offered her the prospect of employment. She understood that you were offering her work as a stripper. She had some limited experience of that kind of work.

[6] You drove to the victim’s address to collect her and drive to Hamilton. You picked her up sometime between 3.00 and 5.00 pm in the afternoon. You had your two pre-school children with you in the car at the time. You drove the victim to your residential address in Hamilton.

[7] Once you were at the property, you invited the victim to make herself comfortable. You left the property for a short period, to take your two children to another house. You then returned and invited the victim to have some wine with you. She agreed. At some stage, you had the victim dress up in various outfits, stating that you liked to know how strippers looked before you hired them. During the course of the evening, you told the victim that you were opening a nightclub. She, however, started to have…

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 Garraway

Details

AGLC: R v Garraway [2013] NZHC 611
Case: [2013] NZHC 611
Decision Date: 26 March 2013

CaseChat Overview and Summary

Mark Garraway was found guilty of multiple sexual offenses against a 17-year-old girl in 2002. The offenses included rape, unlawful sexual connection by digital penetration and oral sex, and indecent assault. The offenses were committed over a prolonged period and involved significant psychological harm to the victim. The court considered various aggravating and mitigating factors in determining the sentence. The court noted the premeditation and vulnerability of the victim, the significant disparity in age, and the prolonged duration of the offenses. The court also considered the defendant's criminal history, which included previous convictions for violence and sexual offenses. However, the court found that the defendant had spent some time on electronic monitoring bail and had recently completed an alcohol and drug abuse program. The court ultimately determined that the appropriate sentence was nine years and eight months in prison for the rape charge, with concurrent sentences of seven years for each of the unlawful sexual connection charges and two years for the indecent assault charge. The court also imposed a minimum term of imprisonment of six years to protect the community and provide time for rehabilitation.

Orders