R v Jamieson - [2012] NZHC 2871

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-019-7493 [2012] NZHC 2871

THE QUEEN

v

ALAN JOHN JAMIESON

Hearing: 31 October 2012

Counsel: AJ Gordon for Crown
PV McGuire for Prisoner

Judgment: 31 October 2012

[REDACTED] SENTENCING NOTES OF RODNEY HANSEN J

Solicitors: Gordon Pilditch, P O Box 740, Rotorua 3040 for the Crown
PV McGuire, P O Box 2060, Rotorua 3040 for the Accused

R V ALAN JOHN JAMIESON HC ROT CRI-2011-019-7493 [31 October 2012]

[1] Mr Jamieson, you appear for sentence having been convicted after trial by jury of one count of sexual violation by unlawful sexual connection, one of attempted sexual violation, a representative count of indecent assault on a girl aged under 12 years and one count of sexual violation by rape.

Facts

[2] The victim, who I will refer to as S,

].

[3] The first act of sexual violation occurred just after her sixth birthday. You took her into the bedroom [ ]. You told her that you would do something to her that happens to big girls and that you felt she was now ready for. You laid her face down on the bed and told her if what you were about to do hurt, then she should scream into the pillow. You then sodomised her. She said she was left with a really sore bottom.

[4] S said that on another occasion when she was aged between six and eight years of age she accompanied you when you took family friends back to Kawerau. [ ] On the way back you took her into the public toilets and changing room by Lake Rotoma. You removed her lower clothing and made her get onto her hands and knees on a bench seat in the toilet. She said that you had your hands around her waist and, it seems clear, that you were about to sodomise her when someone entered the toilet. S said that whoever it was came in said, “sorry” and then left but, because of the interruption, it appears that you did not complete the intended act of sexual violation.

[5] S said that throughout the period [ ], you regularly rubbed her genitalia with your hand. This was skin on skin contact which happened during the daytime. She estimated that these events took place on average three times a month.

[6] The rape occurred in 2001 when S was twelve. She had gone to your house with her sister. [ ] There was no room for her in the car. She was left at home with you. You called her into the bedroom on the pretext of helping you make the bed. You then pushed her back on the bed, removed her lower clothing, pulled down your pants and raped her. Nothing was said. She had a shower because she felt dirty, told your wife when she got home that she felt…

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 Jamieson

Details

AGLC: R v Jamieson [2012] NZHC 2871
Case: [2012] NZHC 2871
Decision Date: 31 October 2012

CaseChat Overview and Summary

In the High Court of New Zealand at Rotorua, Alan John Jamieson was convicted of multiple sexual offenses against a child, including sexual violation, attempted sexual violation, indecent assault, and rape. The court was required to decide on the appropriate sentencing for the offenses, considering the aggravating and mitigating factors involved. The key aggravating factors included the breach of trust, the vulnerability of the victim, the duration and frequency of the offenses, and the premeditated nature of the crimes. The court also considered the defendant's prior conviction for similar offenses against another child, which had resulted in an eight-year imprisonment sentence. The court determined a starting point of 16 years for the totality of the offenses, taking into account the sentencing guidelines and the principles established in previous cases. After deducting the three-year discount for mitigating factors related to the prior offenses, the court imposed a total sentence of 13 years, to be served concurrently with the prior eight-year sentence. The court strongly recommended that the defendant undertake a specialist sexual offender program while serving his sentence. The final orders included concurrent sentences of five years for counts 1, 2, and 4, and three years for count 3, cumulative with the prior eight-year sentence.

Orders