R v Iwikau - [2016] NZHC 222

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-004-4046 [2016] NZHC 222

THE QUEEN

v

JAMES GEORGE IWIKAU

Charges:
Plea:

Entering a building without authority with intent to commit

imprisonable offence; Assault with intent to commit rape

Guilty

Counsel:

N R Williams for Crown
P K Hamlin for Prisoner

Sentenced:

19 February 2016

SENTENCING NOTES OF DAVISON J

Solicitors/Counsel: Meredith Connell (Auckland) for Crown
P K Hamlin (Auckland) for Prisoner

R v IWIKAU [2016] NZHC 222 [19 February 2016]

Introduction

[1] Mr Iwikau, you may remain seated while I address the issue of your sentence. At the end of the sentencing remarks which I am about to deliver, I will ask you to stand as the sentence is in fact imposed.

[2] Mr Iwikau, you have pleaded guilty to one charge of assault with intent to commit sexual violation1 and one charge of entering a building without authority with intent to commit an imprisonable offence.2 The maximum penalty for each of these offences is 10 years’ imprisonment.

[3] You now appear before the Court for sentencing.

Facts

[4] The victim lives at a housing complex split into a number of separate residential blocks. Access to each block is by way of an access card.

[5] On 20 April 2015, at about 11 pm, the victim arrived home with her partner. She entered the complex building using her access card and, having entered the building, she confirmed the door behind her was securely locked. She and her partner then entered her residential room using a separate key which was assigned to her room. At about midnight, she fell asleep in her bed. Her partner, in the same room, fell asleep on the couch.

[6] At around 4 am, you entered the victim’s room using a door or a window. You then climbed onto the bed that she was sleeping in. You moved close to the victim and kissed her on the lips, penetrating her mouth using your tongue. While doing so, you repeatedly whispered to her “take your pants off”. You said that three
or four times.

1 Crimes Act 1961, s 129.
2 Crimes Act, s 231(1)(a).

[7] Believing you to be her partner, the victim told you to shut the door. You got up and moved towards the door to shut it and, in doing so, you made sure your face was covered so that your actual identity was not visible to her.

[8] The victim then co-operated with you by pulling her shorts and underwear down to her knees and, on three occasions, you said to her “let me put it in your mick”. The victim then rolled onto her back with her shorts down. You then moved onto your back and pulled the victim over and towards you so that she was positioned on top of you.

[9] You attempted to undo your pants but…

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 Iwikau

Details

AGLC: R v Iwikau [2016] NZHC 222
Case: [2016] NZHC 222
Decision Date: 19 February 2016

CaseChat Overview and Summary

Mr Iwikau was charged with assault with intent to commit sexual violation and entering a building without authority with intent to commit an imprisonable offence. The sentencing remarks outlined the facts of the case, the aggravating and mitigating factors, and the submissions of both counsel. The Court set out the principles of sentencing before determining the appropriate sentence. It was held that a sentence of preventive detention was appropriate, given the nature of the offending, the offender’s history, and the risk of reoffending. The Court imposed a sentence of preventive detention with a minimum non-parole period of five years on the charge of assault with intent to commit sexual violation and a concurrent sentence of 12 months’ imprisonment on the charge of entering a building without authority with intent to commit an imprisonable offence.

Orders