R v Hart - [2019] NZHC 3309

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-092-11255

[2019] NZHC 3309

THE QUEEN

v

WILLIAM LAWRENCE HART

Hearing: 13 December 2019

Appearances:

J Rhodes and A Al-Janabi for Crown M Kan for Defendant

Judgment:

13 December 2019

SENTENCING REMARKS OF LANG J

R v HART [2019] NZHC 3309 [13 December 2019]

[1] Mr Hart, were found guilty following a trial by jury in the District Court at Manukau on three charges of sexual violation by unlawful sexual connection and one charge of indecently assaulting a male person over the age of 16 years.

[2] The charges of unlawful sexual connection carry maximum sentences of 20 years imprisonment, whilst the charge of indecent assault carries a maximum sentence of seven years imprisonment.

[3] You were not sentenced in the District Court because the Crown indicated it would seek a sentence of preventive detention because of your previous convictions. You have therefore been remanded to this Court for sentence.

The facts

[4] The facts on which you are to be sentenced are those canvassed in the trial held before Judge Moala and a jury in the Manukau District Court between 9 and 17 April 2019. The following summary is taken from the Crown’s submissions on sentence. Mr Kan has no issue with the facts as the Crown sets them out in its submissions.

[5] The victim of your offending was 20 years old at the time of the offending. He was a boarder at an address in Manurewa occupied by a Mr Hazel, whom he evidently regarded as some form of role model. You are an associate of Mr Hazel and resided in another flat in the same complex.

[6] The offending occurred after the victim arrived home at his flat on the evening of 25 January 2017. You and Mr Hazel were both present in the flat when he arrived. The victim told the Court during the trial that he felt “bad vibes” when he returned to the flat and felt that it “wasn’t safe”.

[7] You and Mr Hazel told him to pull down his trousers. When he refused to comply, you both took the initiative of pulling his trousers and underwear down. He said that he did not attempt to stop you because he felt too scared.

[8] You both then touched the victim on his genitals whilst he knelt on the ground. You touched him first and, as you did so, you told him not to look up or you would

stomp on his head. This has resulted in the charge of indecent assault. Whilst the victim was still kneeling on the ground, you took the opportunity to insert your finger inside his anus. He said that you kept it there for “not that long”. This gave rise to Charge 8 in the Crown Charge Notice, which is a charge of sexual violation by unlawful sexual connection.

[9] You then forced the victim to suck on Mr…

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 Hart

Details

AGLC: R v Hart [2019] NZHC 3309
Case: [2019] NZHC 3309
Decision Date: 13 December 2019

CaseChat Overview and Summary

Mr Hart was found guilty of three charges of sexual violation by unlawful sexual connection and one charge of indecent assault against a male person over the age of 16 years. The court had to determine the appropriate sentence for Mr Hart, considering the aggravating and mitigating factors of the case, as well as the possibility of preventive detention. The court established a starting point of ten years imprisonment, taking into account the aggravating factors of the case, such as the victim's vulnerability, the use of threats, and the fact that the crime occurred at the victim's home. The court also considered mitigating factors, such as Mr Hart's troubled upbringing and early involvement in drugs and alcohol, but found no realistic link to his present offending. The court decided to impose a finite sentence of nine years six months imprisonment, with a minimum term of imprisonment of four years eight months. However, the court ultimately decided on a sentence of preventive detention, considering Mr Hart's history of violent offending, the seriousness of the harm caused by the present offending, and the risk of future violent offending. The court concluded that preventive detention was the only effective means of ensuring the community's protection from the risk of future violent offending by Mr Hart upon his release. Mr Hart is sentenced to preventive detention on each charge of sexual violation by unlawful sexual connection and ordered to serve a minimum term of imprisonment of five years before being eligible for parole. He is also sentenced to two years imprisonment on the charge of indecent assault. All sentences are to be served concurrently.

Orders