R v Gay - [2017] NZHC 3149

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-009-8211

[2017] NZHC 3149

THE QUEEN

v

DAVID JOHN GAY

Hearing: 14 December 2017

Appearances:

B Hawes and C White for the Crown M Starling for the Defendant

Judgment:

14 December 2017

SENTENCING REMARKS OF MANDER J

[1] David Gay, you appear this morning for sentence on a charge of indecent assault of a girl between the age of 12 to 16 years, a representative charge of indecent assault on a girl under 12 years, and a representative charge of sexual violation by unlawful sexual connection. To those charges you have entered guilty pleas. Your sentencing was transferred to this Court for the purpose of considering the imposition of a sentence of preventive detention.

Background

[2] It is necessary that I first set out the factual background to the offending for which you are before the Court.

R v GAY [2017] NZHC 3149 [14 December 2017]

[3] The earliest of the offending dates back to 1985, when you were 22 years old. Your victim was the 12 year old stepdaughter of a friend. You were watching a pornographic video at the victim’s address and the victim was sitting on the couch with you. You placed your hand inside the victim’s pants and began fondling her vagina. The victim grabbed your hand, pulled it out of her pants, and told you to stop.

[4] Your second victim was the daughter of a woman with whom you were in a relationship in the mid-1990s. Over a period of some three years you periodically lived with the woman and her daughter. On an occasion in 1995, the victim’s mother left her daughter alone with you at home. The daughter was upset about her mother going out and you, at least, ostensibly, were comforting her. While doing so, you placed your hand inside her underpants and inserted your finger into her vagina. At the time she was nine years old. Over the following three years you repeatedly violated the child in this way.

[5] On a separate occasion, you went into the victim’s bedroom and sat down beside her. You rubbed your hands over the victim’s body, touching her bare chest and the outside of her vagina. Again, the child was repeatedly sexually molested in this way over the next three years.

Victim impact statements

[6] I have received victim impact statements from the two young girls who were your victims. They are now grown women but the impact of your offending remains with them. Undoubtably, they have been damaged as a result of your offending. It has affected their ability to develop relationships. It has caused them long-term anguish, and, in the case of your victim from the 1990s, the resulting issues she was forced to deal with growing up as an abused child has, in her words, “messed [her] whole life up”.

Offending history.

[7] Mr Guy, you were first convicted of serious sexual offending…

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 Gay

Details

AGLC: R v Gay [2017] NZHC 3149
Case: [2017] NZHC 3149
Decision Date: 14 December 2017

CaseChat Overview and Summary

David John Gay was sentenced in the High Court of New Zealand for multiple charges of indecent assault and sexual violation by unlawful sexual connection, for which he had entered guilty pleas. The case involved two victims, a 12-year-old girl in 1985 and a 9-year-old girl over a three-year period from 1995. Gay had a history of sexual offending against children, with previous convictions dating back to 2003. The court was required to decide on the appropriate sentence, considering whether to impose a further sentence of preventive detention, given Gay's extensive history of reoffending despite previous treatment and imprisonment.

The court examined psychiatric reports which indicated that Gay remained at high risk of reoffending and required extensive oversight and management. However, the court also noted that Gay had self-reported his recent offending, which led to a substantial discount in his sentence. The key legal issue was whether a second sentence of preventive detention would be appropriate, given the principles of totality and proportionality and the fact that Gay had already served a significant minimum term of imprisonment. The court concluded that imposing a further sentence of preventive detention would result in a disproportionately severe sentence, given the length of time already served. Instead, the court decided on a finite sentence with specific conditions to ensure community protection.

In its judgment, the court sentenced Gay to five years and seven months' imprisonment for the lead representative charge of sexual violation by unlawful sexual connection, with a minimum period of imprisonment of three years. Gay was also sentenced to concurrent terms of imprisonment for the other charges. The court imposed additional conditions, including registration on the Child Sex Offender Register and ongoing reporting obligations. This decision balanced the need for community protection with the principles of sentencing, particularly considering the length of time already served by Gay.

Orders