R v Heke

Case [2022] NZHC 755 12 April 2022

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2021-019-2019

[2022] NZHC 755

THE QUEEN

v

VINCENT HEKE

Hearing: 12 April 2022

Appearances:

B Vaili for the Crown

T C Tran and A N Gray for the defendant

Date:

12 April 2022

SENTENCING NOTES OF CAMPBELL J

R v HEKE [2022] NZHC 755 [12 April 2022]

Introduction

[1] Mr Heke, you pleaded guilty to a charge of burglary1 and two charges of doing an indecent act on a young person.2 I am going to sentence you today on those charges.

[2] You have previously been convicted of three charges of indecent assault, for offending in February and October 2020. Under the three strikes sentencing regime, you received a first strike warning on 7 October 2020, and a second strike warning on 26 January 2021.

[3] Your two present charges for doing an indecent act on a young person are third strike offences.3 Section 86D of the Sentencing Act 2002 applies. That section says I have to sentence you to the maximum term of imprisonment for those offences. That is a term of seven years’ imprisonment. Section 86D also requires me to order you to serve that sentence without parole, unless that would be manifestly unjust.

[4] However, the Supreme Court has decided, in a case called Fitzgerald v R,4 that s 86D does not require judges to impose sentences that breach s 9 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) and New Zealand’s international obligations. Section 9 of the Bill of Rights says that everyone has the right not to be subjected to disproportionately severe treatment or punishment. The Supreme Court explained that where s 86D produces a sentence that breaches s 9 of the Bill of Rights, the defendant should be sentenced in accordance with ordinary sentencing principles.5

[5] The key issue for me to decide is whether a sentence of seven years’ imprisonment in your case would breach s 9 of the Bill of Rights.

Facts

[6] I can summarise your offending briefly. In the afternoon of 24 April 2021, a 15-year-old girl was in the lounge at her home, across the road from where you lived.

1      Crimes Act 1961, s 231(1)(a). Maximum penalty: 10 years’ imprisonment.
2      Section 134(3). Maximum penalty: seven years’ imprisonment.
3      Sentencing Act 2002, s 86A definition of “serious violent offence”.
4      Fitzgerald v R [2021] NZSC 131.
5      At [252] per Glazebrook J and [231] per O’Regan and Arnold JJ.

[7] You entered her home and walked into the lounge. You approached her from behind as she bent to pick up a vacuum cleaner. You pulled her pants back, exposing her skin, and grabbed her buttocks. As she turned around, you attempted to put your other hand down her pants.

[8] The victim screamed and ran down the corridor to a bedroom where a friend was. You followed the victim into the bedroom.…

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 Heke

Details

AGLC: R v Heke [2022] NZHC 755
Case: [2022] NZHC 755
Decision Date: 12 April 2022

CaseChat Overview and Summary

The defendant, Mr. Vincent Heke, was charged with burglary and two counts of doing an indecent act on a young person. He pleaded guilty to all charges and faced sentencing. The defendant had a history of offending, including previous convictions for indecent assault, leading to the application of the three strikes sentencing regime. Under this regime, the court was mandated to impose the maximum sentence of seven years' imprisonment for the indecent acts on a young person. However, the court had to consider whether such a sentence would disproportionately breach the New Zealand Bill of Rights Act 1990.

The primary legal issue was whether imposing the maximum penalty of seven years' imprisonment would be disproportionately severe, thereby breaching section 9 of the Bill of Rights, which protects against disproportionately severe treatment or punishment. The court referenced the Supreme Court's decision in Fitzgerald v R, which established that sentences that shock the conscience of properly informed New Zealanders would breach section 9. Factors such as the disparity between the sentence imposed under the three strikes regime and what would have been imposed otherwise, and whether the defendant was an inadvertent casualty of the regime, were considered.

After examining the defendant's personal circumstances, including his mental health issues and deprived upbringing, the court concluded that a sentence of seven years would be disproportionately severe. The court found that the defendant's mental health issues, exacerbated by his upbringing and substance abuse, played a significant role in his offending. Given the relatively low seriousness of the current offences compared to previous ones, the court found that the defendant was an inadvertent casualty of the three strikes regime. Therefore, the court imposed a sentence of 14 months' imprisonment, aligning with ordinary sentencing principles, and set special release conditions to ensure the defendant's engagement with mental health services and to protect potential victims.

Orders