R v H - [2015] NZHC 657

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2014-087-000551 [2015] NZHC 657

THE QUEEN

v

H

Hearing: 2 April 2015

Appearances:

C A Harold for the Crown
G R Tomlinson for the Defendant

Sentencing:

2 April 2015

SENTENCING NOTES OF WOOLFORD J

Solicitors: Crown Solicitor, Tauranga
Gowing & Co Limited, Whakatane

R v H [2015] NZHC 657 [2 April 2015]

Summary

[1] Mr H, you were convicted, after a jury trial, of six charges of indecent assault on a young person (one of which was representative) and two charges of sexual violation by unlawful sexual connection (one of which was also representative).

[2] Sexual violation by unlawful sexual connection, under s 128B Crimes Act

1961, carries a maximum penalty of 20 years imprisonment. Indecent assault, under s 134(3) of the Crimes Act 1961, carries a maximum penalty of seven years imprisonment.

[3] Given the jury’s findings, I must now sentence you to an appropriate sentence which reflects the culpability of your offending.

Facts

[4] The facts of your offending are that you, Mr H, sexually violated your

13 year old niece on a number of occasions between December 2013 and March

2014.

[5] The victim lived between two homes on a family property, with her grandmother living in one and her mother in the other. In April 2013, Mr H, you moved to live with your mother, the victim’s grandmother.

[6] You and the victim became close. She had no father, and you became a father figure to her. You helped her when she was having difficulties with her own mother. You helped her with her homework and you gave her financial assistance. Through that closeness, you took advantage of her and sexually offended against her on a number of occasions.

[7] On 11 December 2013, you came in to the victim’s room to wake her up to go to school. You got into bed with her, but then stroked her breasts and touched her vagina. This was the first unlawful sexual connection charge. The second, representative, charge of unlawful sexual connection is that on three to five

occasions, you stroked the victim’s vaginal area, and put your fingers inside her

vagina.

[8] As well as these more serious offences, you also committed six charges of indecent assault, which included trying on one occasion to get her to touch your penis, and one representative charge reflecting that on about five occasions you “humped” the victim, by lying on her and moving your body against hers.

[9] You were acquitted on one other charge of unlawful sexual connection, and the jury were unable to agree on two other counts of indecent assault. I am advised by the Crown this morning that it does not wish to proceed on these two other counts of indecent assault and you are accordingly discharged on Counts 1 and 3 in the indictment.

Victim…

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 [2015] NZHC 657
Case: [2015] NZHC 657
Decision Date: 2 April 2015

CaseChat Overview and Summary

The case of R v H was heard in the High Court of New Zealand, Tauranga Registry, on April 2, 2015. Mr H, the defendant, was convicted of six charges of indecent assault on a young person and two charges of sexual violation by unlawful sexual connection, both involving a 13-year-old victim, his niece. The Crown argued for the representative charge of unlawful sexual connection to be the lead charge, considering it as aggravated by the specific unlawful sexual connection charge and the other range of indecencies which took place. The Crown argued for a sentence in the middle of Band 2 of the guideline judgment, R v AM, considering the vulnerability of the victim, the breach of trust, the scale of the offending, an element of premeditation or grooming, and the significant harm caused. The offender's counsel argued that the culpability factors relevant were a breach of trust and the vulnerability of the victim, and any other factors were seen as reflecting culpability insofar as they were a natural part of all sexual offending.

The court considered the purposes and principles of sentencing under the Sentencing Act 2002, including the need for the sentence to demonstrate accountability for harm done to the victim and the community and particularly, responsibility for, and acknowledgment of that harm. The court also considered the need to denounce and to some extent deter this type of behaviour. The court found that the aggravating factors relevant to the defendant's offending against the victim included the extent of any resulting loss, damage, or harm; breach of trust or authority; vulnerability of the victim; and premeditation. The court found that the offending was more clearly seen as in Band 2 given the nature of the trusting relationship between the defendant and the victim. The court imposed a sentence of four years and three months imprisonment on the lead charge of sexual violation by unlawful sexual connection and concurrent sentences for the other charges.

The court in R v H considered the aggravating and mitigating factors relevant to the defendant's offending and personal circumstances in determining an appropriate sentence. The court found that the aggravating factors justified a four and a half year starting point, and an uplift of three months was necessary to reflect the defendant's indecent assaults against the victim, particularly their frequency. The court found that the only mitigating factor available was the defendant's previous good character, and a six-month discount was appropriate. The final sentence was four years and three months imprisonment on the lead charge of sexual violation by unlawful sexual connection and concurrent sentences for the other charges.

Orders