BThe sentences of 13½ and 10 years imprisonment for sexual violation are quashed and preventive detention is substituted. The ordered minimum
period of imprisonment, seven and a half years, remains.

REASONS OF THE COURT

(Given by Panckhurst J)

R V HUTCHISON CA CA258/06 8 March 2007

An indeterminate or a finite sentence?

[1] The Solicitor-General seeks the substitution of a sentence of preventive detention in lieu of a finite term of 13½ years with a minimum period of imprisonment of seven and a half years. Such sentence was imposed in relation to the repeated rape and violation of a child over a five year period, when she was three to eight years of age. The respondent is aged 34 years. He is eligible for the sentence of preventive detention.

[2] However, the sentencing Judge, Cooper J, concluded that given the absence of previous like offending and the circumstance that Mr Hutchison had never received treatment for the causes of his offending, a lengthy determinate sentence was to be preferred, as opposed to a sentence of preventive detention.

[3] The essence of the argument in support of the Solicitor-General’s appeal is that the issues of future risk following release, and whether a determinate sentence would provide adequate protection for society, were not sufficiently confronted at sentencing. Counsel for the Solicitor-General argued that upon an appropriate focus on these issues substitution of the indeterminate sentence in lieu of a finite term was required.

The offending

[4] The nature of the offending was awful. The respondent pleaded guilty to

24 counts of sexual violation by rape, 51 counts of sexual violation by unlawful sexual connection and 16 charges that he knowingly made objectionable publications contrary to the Films Videos and Publications Act 1993.

[5] Between 1998 and 2005 he was in a de facto relationship with the mother of the child victim. The mother went out to work. The complainant was left in the respondent’s care. Over the relevant period she was repeatedly raped and sodomised. She was also forced to perform oral sex on the respondent. These acts commonly occurred after the complainant had been undressed, blindfolded and her hands tied together.

[6] In June 2005 the complainant disclosed the abuse to her father. However, the actual scale and extent of the offending was only revealed when the police seized a collection of video tapes. These contained hours of graphic footage recording the acts to which the complainant had been subjected. In some scenes the respondent could be heard giving directions to the complainant as…

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 Hutchinson

Details

AGLC: R v Hutchinson [2007] NZCA 55
Case: [2007] NZCA 55
Decision Date: 8 March 2007

CaseChat Overview and Summary

In the appeal of R v Hutchinson, the Court of Appeal of New Zealand was tasked with reviewing the sentence imposed on the appellant, Jarred James Hutchison, for his conviction of multiple counts of sexual violation, unlawful sexual connection, and making objectionable publications. The appeal sought the substitution of the appellant's finite sentence with a sentence of preventive detention, arguing that the original sentence did not adequately address the significant and ongoing risk posed by the appellant to the safety of young members of the community.

The legal issues central to this appeal were whether the appellant's future risk of reoffending was sufficiently established to warrant preventive detention and whether a lengthy determinate sentence provided adequate protection for society. The Crown argued that the original sentence did not adequately confront these issues, and the risk assessments suggested a likelihood of further offending upon release. The Court examined the statutory framework of Section 87, which outlines the criteria for imposing preventive detention, emphasizing the need to protect the community from those who pose a significant and ongoing risk.

The Court of Appeal, while acknowledging the gravity of the appellant's crimes and the profound impact on the victim, found that the sentencing judge did not sufficiently address the issue of future risk. The majority of the Court concluded that the combination of the pattern evident in the subject offending and the impediments to the respondent's successful involvement in a course of treatment did satisfy the statutory test, indicating a likelihood of further relevant offending upon release from a finite term. Therefore, the majority considered it appropriate to exercise the discretion to impose preventive detention, given the seriousness of the present offending and the significant and ongoing risk posed by the appellant.

The final orders of the Court granted leave to appeal and allowed the appeal. The sentences of 13½ and 10 years imprisonment imposed in relation to the sexual violation charges were quashed, and a sentence of preventive detention was substituted. The ordered minimum period of imprisonment, seven and a half years, remained unchanged.

Orders