R v Graham - [2021] NZHC 3326

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 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-2021-004-002695

[2021] NZHC 3326

THE QUEEN

v

PAGE DAVID GRAHAM

Hearing: 7 December 2021

Counsel:

J C Barry for Crown

N C Wintour for defendant

Judgment:

7 December 2021

Reissued:

8 September 2022

(Identifying information regarding the complainants redacted)

SENTENCING NOTES OF KATZ J

Solicitors: Meredith Connell, Office of the Crown Solicitor, Auckland Counsel: N C Wintour, Barrister, Auckland

R v GRAHAM [2021] NZHC 3326 [7 December 2021]

Introduction

[1] Mr Graham, you have pleaded guilty to a range of sexual offending against two child victims, whom I will refer to as “A” and “B”. In particular, you have pleaded guilty to:

(a)two charges of sexual violation by rape;1

(b)three charges of sexual violation by unlawful sexual connection;2 and

(c)six charges of doing an indecent act on a child.3

[2]Some of these charges are representative.

[3] You appear today for sentence. The maximum penalty available on each charge of sexual violation is 20 years’ imprisonment. The maximum penalty available on each charge of doing an indecent act on a child is 10 years’ imprisonment.

Offending against “A”

Charges 1 and 2 – Indecent act on a child

[4] Between 20 July 2003 and 8 June 2008, you indecently assaulted A on multiple occasions in your bedroom [redacted]. The assaults began when you were 11 or 12 years old. A was five or six years old at this time. The offending included rubbing your erect penis against A’s buttocks, putting her hand down your pants and forcing her to masturbate you; and forcing her to kiss your penis. The first charge of doing an indecent act on a child relates to the period before you turned 14 years old. The second charge relates to the period after you turned 14 years old.

1      Crimes Act 1961, ss 128(1)(a) and 128B. Maximum penalty of 20 years’ imprisonment.
2      Crimes Act 1961, ss 128(1)(b) and 128B. Maximum penalty of 20 years’ imprisonment.
3      Crimes Act 1961, ss 132(3). Maximum penalty of 10 years’ imprisonment.

Charges 3 and 4 – Indecent act on a child

[5] Approximately three times per week between 20 July 2003 and 8 June 2008, you sexually assaulted A in the back of the [redacted] vehicle, when it was being driven at night. You forced A’s hand down your pants to masturbate you.

[6] The third charge of doing an indecent act on a child relates to the period before you turned 14 years old. The fourth charge relates to the period after that.

Sexual violation by rape

[7] On one occasion between 20 July 2003 and 19 July 2005, you made A undress. You then tried to insert your penis into her vagina. This caused A to scream out in pain. At that point you ceased what you were…

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 Graham

Details

AGLC: R v Graham [2021] NZHC 3326
Case: [2021] NZHC 3326
Decision Date: 7 December 2021

CaseChat Overview and Summary

The case of R v Graham involves the defendant, Page David Graham, who pleaded guilty to a series of sexual offences against two child victims, referred to as "A" and "B". The offences included sexual violation by rape, sexual violation by unlawful sexual connection, and doing an indecent act on a child. The legal issues in this case were determining the appropriate starting point for sentencing, adjusting the starting point for personal mitigating factors, and deciding on the imposition of a minimum period of imprisonment and preventive detention.

The court began by setting a starting point for sentencing based on the aggravating features of the offending, which included the vulnerability of the victims, the high degree of violation, the significant breaches of trust, the duration of the offending, and the harm to the victims. The court determined that a starting point of 16 years' imprisonment was appropriate. The court then considered personal mitigating factors, including the defendant's guilty plea, his personal background, and his youth at the time of the offending. The court applied discounts for the guilty plea and personal circumstances, resulting in an end sentence of four years and ten months' imprisonment. The court also adjusted the sentence for totality, considering the defendant's previous convictions for sexual offences. The final sentence was three years and nine months' imprisonment, with a minimum period of imprisonment of one year and eleven months.

In addition to the sentence, the court imposed a first strike warning under the three strikes regime, advising the defendant of the consequences of another serious violence conviction. This warning was issued despite the defendant having already received two first strike warnings, as his current offending occurred before he was given a first strike warning.

Orders