R v H - [2018] NZHC 2144

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2017-029-001069

[2018] NZHC 2144

THE QUEEN

v

M H

Hearing: 21 August 2018

Counsel

RB Annandale for Crown

ID Tucker and TSM Spencer for Defendant

Judgment:

21 August 2018

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:
Crown Solicitor, Whangarei Tucker & Co, Auckland.
TSM Spencer, Auckland.

R v H [2018] NZHC 2144 [21 August 2018]

Introduction

[1] Mr H, you are for sentence on 17 charges of sexual offending—all in relation to your three granddaughters. You sought a sentence indication. I gave you one on 5 June 2018. You pleaded guilty the same day. I will sentence you as I then foreshadowed.

[2]As observed, you face 17 charges:

(a)Two of sexual violation by rape. Both are representative.

(b)Seven of sexual violation by unlawful sexual connection. Six are representative.

(c)Eight of doing an indecent act on a child under 12. All are representative.

Facts

[3]Your victims, A, B and C, stayed with you frequently.

[4] A did so between 7 February 2016 and 7 November 2017. She was then seven and eight. You repeatedly raped her. You also repeatedly put your penis into her anus. On one occasion, you put your penis into her mouth. You also repeatedly: put your fingers into her genitalia; penetrated her genitalia with your mouth; touched her on the bottom; and had her touch your penis.

[5] B stayed with you between 1 January and 7 November 2017. Like A, she was also seven and eight. You repeatedly: raped B; put your penis into her anus; and put your penis into her mouth. You also repeatedly: put your fingers into her genitalia; made her touch your penis; and touched her bottom.

[6] Your offences against C occurred over the same period as B. She was a similar age: six and seven. Your offending against her was a little different in that it was less intrusive. But, it was still very serious. You would regularly: place your penis against her genitalia; touch her genitalia; touch her bottom; and have her touch your penis.

[7] All but one of your charges is representative: you engaged in a pattern of conduct. Consequently, the precise number of rapes, violations and indecent acts you committed is unknown, save of course for the single occasion in which you put your penis into A’s mouth.

Aggravating factors

[8]Five things make your offending more serious.

[9] First, the victims’ age. A, B and C were children only. And young children at that.

[10] Second, you breached each victim’s trust—repeatedly—while each was in your care. Staying with a grandfather should be the stuff of fond memory, not nightmare.

[11]Third, the nature, scale and intrusiveness of your offending makes it depraved.

[12] Fourth, victim harm. There have been “massive changes” in A’s behaviour because of what you did to her. A has also exhibited, meaning demonstrated, sexualised behaviour. B and C have become angry, defiant and less able to cope…

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 H

Details

AGLC: R v H [2018] NZHC 2144
Case: [2018] NZHC 2144
Decision Date: 21 August 2018

CaseChat Overview and Summary

In the High Court of New Zealand, the defendant, M H, was sentenced on 17 charges of sexual offending relating to his three granddaughters. The court heard that the defendant had pleaded guilty to all charges on the same day that he received a sentence indication. The legal issues that the court had to decide included determining the appropriate starting point for the defendant's sentence, considering mitigating factors such as his age and possible health issues, and assessing the discount for his guilty pleas. The court also had to decide whether to impose a minimum period of imprisonment and whether to include additional charges under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016.

The court found that the defendant's offending was within the most serious band for rape and adopted a starting point of 18 years' imprisonment. The court accepted that the defendant's age and tangible health issues warranted a discount, and it applied a 15% discount to his sentence. The court also found that the defendant's guilty pleas warranted a 20% discount. However, the court did not find that the defendant had shown tangible remorse beyond that inherent in his guilty pleas. The court decided not to impose a minimum period of imprisonment due to the defendant's age and other health issues.

The court sentenced the defendant to a total of 12 years and 2 months' imprisonment, which was nine months less than the sentence indication given earlier. The court also found the defendant to be a registrable offender under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016, which means that his name and information relevant to his offending will be placed on the Child Sex Offender Register. The defendant will have initial and ongoing reporting obligations under the Act for the rest of his life. The court dismissed some of the charges due to the defendant's pleas and the sentence imposed.

Orders