R v Gotty - [2017] NZHC 1102

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-004-005255 [2017] NZHC 1102

THE QUEEN

v

STEPHEN MARK GOTTY

Hearing: 25 May 2017

Counsel:

NR Williams for Crown
M Kan for Defendant

Judgment:

25 May 2017

SENTENCING NOTES OF DOWNS J

Solicitors:
Michael Kan Law Ltd, Auckland.
Meredith Connell, Auckland.

R v GOTTY [2017] NZHC 1102 [25 May 2017]

Introduction

[1] Mr Gotty, you were found guilty by a District Court Judge of two offences of sexual violation by unlawful sexual connection. As you probably know, each is punishable by a maximum term of 20 years’ imprisonment. You are for sentence in this Court because the District Court concluded preventive detention may be an appropriate sentence. Preventive detention is an indefinite sentence.

[2] You were warned in the District Court of the consequences of conviction for a third strike offence. I will not repeat that warning. I will say this though: these offences comprise your second strike, and you remain subject to the three strikes law.

The offending

[3] On 27 January last year you shared a prison cell with the 19 year old victim. More about why you were in prison later. Unlike you, the victim had limited experience of prison life. You and he knew each other, or at least knew of each other. You encouraged the victim to move into your cell. He did.

[4] That evening after lock down, you talked to the victim about—as he put it in his evidence—“real twisted and sexual stuff”. You moved your mattress from the top bunk and placed it next to the lower bunk. You ran your hands up the victim’s leg and touched his penis. You masturbated him. You told the victim you wanted to perform oral sex. He was frightened because you had earlier told him you beat people up. You performed oral sex on the victim. You then made him do the same to you. You forcefully held his head throughout. And, you told him he was now your “bitch”.

[5] The victim had a shower immediately afterwards. He felt dirty. He was too afraid to use the emergency button in the cell because he was worried there may be a long delay before help could arrive. He faked stomach pain, and so you called for help. Once out of the cell, the victim told prison staff he had been the victim of a sexual assault. You denied the offending. You continue to do so. The case went to

trial before a Judge sitting without a jury. Judge Field found you guilty of both offences.

Victim impact

[6] Although you deny it, your offending has caused the victim significant harm. He suffers anxiety and an inability to concentrate. He is on medication, but for which he would feel suicidal. Sadly, he feels ashamed of what happened even though he did nothing wrong. That is not uncommon in cases of sexual offending. It is one reason Courts treat sexual cases so seriously.

Starting point

[7] There was…

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 Gotty

Details

AGLC: R v Gotty [2017] NZHC 1102
Case: [2017] NZHC 1102
Decision Date: 25 May 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the defendant, Stephen Mark Gotty, was sentenced for two counts of sexual violation by unlawful sexual connection. The offenses occurred in a prison setting where Gotty shared a cell with the victim, a 19-year-old with limited prison experience. Gotty engaged in sexual acts with the victim, who was frightened and felt compelled to comply due to Gotty's threats and physical dominance. The victim reported the offenses immediately after they occurred, leading to Gotty's conviction in the District Court, which referred the case to the High Court for sentencing due to the potential for preventive detention.

The legal issues before the court involved determining an appropriate starting point for sentencing and whether preventive detention was warranted. The court considered the aggravating factors of the offenses, including premeditation, the vulnerable state of the victim, and the custodial setting, leading to an adjusted starting point of nine years' imprisonment. Additionally, the court had to assess the risk of Gotty reoffending and whether preventive detention was necessary for public safety. The court found that Gotty's extensive criminal history, which included prior sexual offenses and violence, indicated a high risk of reoffending, justifying preventive detention.

The court reasoned that a finite sentence would not adequately protect the community, given Gotty's persistent pattern of criminal behavior and lack of rehabilitation efforts. The court concluded that preventive detention was the only appropriate response, imposing a minimum term of nine years. Gotty was sentenced to preventive detention on each count of sexual violation by unlawful sexual connection, with a requirement to serve at least nine years in prison before any possibility of release by the Parole Board.

Orders