Legal Research
Cases
R v Hamilton

R v Hamilton

Case [2023] NZHC 3138 8 November 2023

Extended Supervision Order

Criminal Law

No judgment structure available for this case.

Type to search within this case.

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 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-2022-004-1006

[2023] NZHC 3138

THE KING

v

ALAN ANDREW HAMILTON

Hearing: 8 November 2023

Appearances:

J V Barry for Crown

S J Gray for defendant

Date of sentence:

8 November 2023

Reissued:

27 November 2023

SENTENCING NOTES OF JAGOSE J

Counsel/Solicitors:
Susan Gray, Barrister, Auckland Meredith Connell, Auckland

R v HAMILTON [2023] NZHC 3138 [8 November 2023]

[1] Mr Hamilton, as you know, on 30 May this year, a District Court jury found you guilty of one charge of indecent assault.1

[2] As a sentence of preventive detention then was contemplated, you have come to me in this Court to sentence you for that offending.2 But the Crown does not now seek such a sentence, correctly comprehending your offending to be less serious than similar offending for which my sentence of preventive detention was overturned.3

[3] I have read and listened to all that the lawyers have had to say, both for you and for the Crown. The Crown proposes a starting point of 18 months’ imprisonment for your offending, uplifted by six months for your previous offending. Your lawyer, Susan Gray, proposes a 12-month starting point uplifted by three months for your previous offending. She then claims a 20 per cent discount for factors in your background said causative of your offending. She points out, as you have been in custody for some 21 months, that would give rise to your immediate release although, as the Crown points out, on the resumed conditions of your extended supervision order (ESO).4

[4] I have given the lawyers’ submissions careful consideration. I am not going to recite them, because sentencing is an intense exercise of my own judgement. I am not bound by the lawyers’ views; I have to come to my own decision.

[5] In sentencing you, I must accept as proven all facts essential to your established guilt.5 To meet sentencing’s multiple purposes,6 I must satisfy myself of the appropriate sentence for the gravity (or seriousness) of your offending, including your culpability (or responsibility) for it, as the least restrictive outcome appropriate in the circumstances.7

1      Crimes Act 1961, s 135; maximum penalty, seven years’ imprisonment.
2      Sentencing Act 2002, s 90.
3      Moore v R [2023] NZCA 286.
4      Parole Act 2002, s 107I.
5      Sentencing Act, s 24(1)(b).
6      Section 7: accountability, responsibility, victims’ interests, reparation, denunciation, deterrence, community protection, rehabilitation and reintegration.
7      Section 8.

Background

[6] I need first to cover off the background for your offending, so that people reading this judgment can understand the conduct for which I am to sentence you.

[7] Late in the afternoon of Saturday, 19 February 2022,…

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 Hamilton

Details

AGLC: R v Hamilton [2023] NZHC 3138
Case: [2023] NZHC 3138
Decision Date: 8 November 2023

CaseChat Overview and Summary

Alan Andrew Hamilton was convicted by a jury of indecent assault, an offence under the Crimes Act 1961. The conviction arose from an incident where Hamilton indecently assaulted a 17-year-old boy in Victoria Park, Auckland. The court was required to determine the appropriate sentence for this offence, taking into account the aggravating and mitigating factors relevant to both the offence and Hamilton's personal circumstances. The Crown proposed a starting point of 18 months' imprisonment, uplifted by six months due to Hamilton's previous convictions. Hamilton's lawyer argued for a 12-month starting point, uplifted by three months for his prior convictions, and requested a 20% discount based on factors in Hamilton's background that contributed to his offending.

The court considered the arguments presented and ultimately decided on a starting point of 18 months' imprisonment, uplifted by four months due to Hamilton's persistent pattern of similar offending and breaches of his extended supervision order. The court found no mitigating factors in Hamilton's personal circumstances and concluded that a sentence of 22 months' imprisonment was appropriate. This sentence was intended to denounce the offending, deter Hamilton and others from similar conduct, and protect the community. The court also considered the impact on the victim, who was intellectually impaired and unable to participate in the proceedings, and the significant age disparity between Hamilton and the victim. The sentence reflects the community's repudiation of Hamilton's crime and was determined based on justice and deliberation, taking into account the statutory purposes and principles of sentencing.

Orders