R v Hetherington - [2013] NZHC 3393

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NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.
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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2011-029-000341 [2013] NZHC 3393

THE QUEEN

v

LUKE GRAHAM HETHERINGTON

Hearing: 16 December 2013

Appearances: A Patterson for Crown
M B Dodds for Accused

Judgment: 16 December 2013

SENTENCING NOTES OF ANDREWS J

Solicitors/Counsel:
Crown Solicitor, Whangarei
M B Dodds, Kerikeri

R v HETHERINGTON [2013] NZHC 3393 [16 December 2013]

Introduction

[1] Mr Hetherington you appear for sentencing today having been convicted on

30 May 2013, following a jury trial in the District Court at Kaikohe, on one charge of rape, two charges of sexual violation by unlawful sexual connection, one charge of indecent assault on a young person, and one charge of threatening to kill. The Judge who presided over the trial declined jurisdiction to sentence you, and your sentencing has therefore been removed into this Court.

[2] Sentences of up to 20 years imprisonment may be imposed on the convictions for rape and sexual violation. For the charges of indecent assault and threatening to kill, the maximum sentence available is seven years imprisonment. However, in certain circumstances, the court may impose a sentence of preventive detention, which is an indeterminate sentence. As you know in this case the Crown has applied for a sentence of preventive detention and that is on the grounds that such a sentence is necessary in order to protect the community from you. I have to decide, today, whether to sentence you to a finite term of imprisonment – that is, imprisonment for a defined period of time – or whether an indefinite term of imprisonment is required to protect the community from you.

Facts of the offending

[3] Your offending occurred on the morning of Sunday, 20 March 2011, while you and your partner were staying at the victim’s parent’s home. The previous evening, you and your partner had been at a party not far from the victim’s home and the victim’s mother and stepfather were there too.

[4] At about 2:00 am the victim’s parents left the party to go home. They met you and your partner, when you were looking for the address where you had planned to sleep. The victim’s parents invited you and your partner back to their house instead. At the victim’s house you and the other adults continued to drink and socialise until the early hours of the morning. The victim and her brother were asleep when you got to the house.

[5] Later that morning, sometime between half past six and half past eight, the victim got up and went to watch TV. She was 13 years old at the time, and she suffers from a significant intellectual disability. Her mental age is much younger than her chronological age. At the time, you were in the lounge, drinking and smoking. You…

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 Hetherington

Details

AGLC: R v Hetherington [2013] NZHC 3393
Case: [2013] NZHC 3393
Decision Date: 16 December 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Hetherington was convicted on multiple charges including rape, sexual violation, indecent assault, and threatening to kill. The court had to determine whether to impose a finite term of imprisonment or an indefinite term of preventive detention to protect the community. The court considered the severity of the victim's vulnerability, the harm caused, the premeditation of the crime, the presence of violence, and the scale of the offending. After examining the pre-sentence report, victim impact statements, and expert opinions, the court concluded that the starting point for a finite sentence on the rape charge was 11 years and 3 months imprisonment. The court then adjusted the starting point to account for other charges and previous convictions, resulting in a final finite sentence of 13 years and 6 months imprisonment. The court also considered whether preventive detention was necessary to protect the community, but ultimately decided that a lengthy term of imprisonment would be more appropriate in this case. The final sentence imposed was 13 years and 6 months imprisonment with a minimum period of imprisonment of 8 years.

Orders