R v Hogben - [2018] NZHC 3220

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-009-007789

[2018] NZHC 3220

THE QUEEN

v

ADRIAN RAYMOND HOGBEN

Hearing: 7 December 2018

Appearances:

K South for the Crown

M Starling for the Defendant

Judgment:

7 December 2018

SENTENCING REMARKS OF NATION J

[1] Mr Hogben, you appear today for sentence having been found guilty on a number of charges of sexual offending between 1 January 1998 and 31 December 1998. Your trial was before me, sitting without a jury, on 5 and 6 November 2018. You were convicted of:

(a) Four charges of sexually violating the complainant by unlawful sexual connection, occasioned by penetration of her genitalia with your finger.

R v HOGBEN [2018] NZHC 3220 [7 December 2018]

One of those charges was for such an offence happening in the shower at the grandmother’s house and was laid on a representative basis. There was another similar charge on a representative basis as to such offending at your bedsit.

(b) There were four charges of sexually violating the complainant by rape.

One of those charges was laid on a representative basis alleging rape at the grandmother’s home in Christchurch. Another charge laid on a representative basis related to such offending in your bedsit.

(c) Another charge of unlawful sexual connection, said to have been occasioned by connection with your penis and her mouth or tongue.
This charge was laid on a representative basis.

(d) A further charge that you sexually violated the complainant by unlawful sexual connection, occasioned by connection between your penis and her mouth.

[2] The charges laid on a representative basis were laid on the basis that offending could have occurred at least once but could have occurred more often. I find that offending occurred more often.

[3]The offending is described in detail in my judgment of 9 November 2018.

[4] Although there were a number of discrete charges, they were necessary because of the different forms of sexual violation and unlawful sexual connection you committed and because of the way your victim could recall the circumstances of particular incidents which then had to be the subject of a specific charge.

[5] You were found guilty of serious sexual offending with your victim over a period of around three months towards the end of 1998. It was around the time your victim had turned 17. You were 42. Over that period, you used your victim for sexual gratification. The sexual acts you committed with her included all the different forms of sexual violation and unlawful sexual connection that you were found guilty of.

[6] I consider it appropriate to sentence you for the totality of your offending without trying to pick a specific charge as the index or lead charge.

[7] Some of the offending occurred when your victim was in the shower. There were other…

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 Hogben

Details

AGLC: R v Hogben [2018] NZHC 3220
Case: [2018] NZHC 3220
Decision Date: 7 December 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, Adrian Raymond Hogben was convicted of multiple counts of sexual offending against a teenager between January and December 1998. The court was tasked with determining an appropriate sentence for Hogben, considering both the 1998 charges and a previous sentence from 1999 for similar offences. The key legal issues were the appropriate starting point for the 1998 offences, the impact of the 1999 sentence and extended supervision order on the current sentencing, and whether a minimum term of imprisonment should be imposed.

The court began by considering the appropriate starting point for the 1998 offences, which would have been 12 years based on the aggravating factors such as planning and premeditation, violence, and the scale of the offending. The 1999 offences, for which Hogben had already served a seven-year sentence, involved similar offences against another teenager. The court determined that if all offences had been considered together in 1999, the starting point would have been 14 years, reduced to 13 years due to mitigating factors. Given the time served and the extended supervision order, the court concluded that a six-year sentence for the 1998 offences was appropriate. The court also decided against imposing a minimum term of imprisonment, noting Hogben's lack of reoffending since his release and the protective nature of the extended supervision order.

The final orders of the court were that Hogben be sentenced to six years’ imprisonment on each charge, with the sentences running concurrently.

Orders