R v Jenkins - [2014] NZHC 1923

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2012-012-2754 [2014] NZHC 1923

THE QUEEN

v

ALLAN JAMES JENKINS

Hearing: 14 August 2014

Appearances:

C E R Power for Crown
S A Saunderson-Warner for Defendant

Sentence:

14 August 2014

SENTENCING REMARKS OF LANG J

R v JENKINS [2014] NZHC 1923 [14 August 2014]

[1] Mr Jenkins, you appear for sentence having been found guilty at trial on three charges of sexual violation by rape, one charge of attempted sexual violation, one representative charge of indecent assault and two charges of burglary. In addition, you pleaded guilty shortly before a subsequent trial to a further charge of sexual violation by rape.

[2] The maximum penalty in respect of the charges for sexual violation by rape is

20 years imprisonment. The maximum sentences for the charges of attempted sexual violation and burglary are ten years imprisonment, and the maximum sentence for the charge of indecent assault is seven years imprisonment.

Background

[3] Your offending relates to four separate complainants.

TM

[4] The earliest offending occurred in respect of the complainant TM, who was aged 23 years at the time of the offending. You pleaded guilty to a charge of raping TM four days before your jury trial on that charge was due to commence.

[5] This offending began late on the evening of 22 August 2006, when you were at the Casino in Dunedin. The victim was an acquaintance, and approached you with a request that you give her a ride home. You agreed, and the two of you left the Casino at about 10.35 pm. As you left you told the victim she was not to tell anyone you were taking her home, or you would get in trouble with your girlfriend. Once the journey began, you immediately began talking to the victim about sex. You also asked her if she would have sex with you. She told you on numerous occasions during the trip that she did not want to have sex with you.

[6] Rather than take the victim home, you drove her to a park near St Kilda beach where you stopped the vehicle. You then got out of the driver’s seat and walked around to the passenger side of the vehicle, where you opened the front passenger door. You leaned in, kissed the victim and then climbed into the footwell in front of her. After closing the door, you pulled her pants down and pulled her

underwear to one side. You then put her legs over your shoulders and penetrated her vagina with your penis in a manner that caused her to cry out with pain. You continued to have sexual intercourse with her whilst she continued to cry out in pain. After ejaculating, you got out of the vehicle and drove the victim home.

[7] When the police spoke to you about the offending, you denied having had sex with the victim. You were 40 years of age at the time of this offending. It resulted…

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 Jenkins

Details

AGLC: R v Jenkins [2014] NZHC 1923
Case: [2014] NZHC 1923
Decision Date: 14 August 2014

CaseChat Overview and Summary

The defendant, Allan James Jenkins, was convicted of multiple charges of sexual violation by rape, attempted sexual violation, indecent assault, and burglary. The crimes were committed against four separate complainants over a period of several years. The court was tasked with determining an appropriate sentence, considering both finite and preventive detention options. The court calculated a starting point for the finite sentence by examining the severity of the crimes against each victim and applying principles of totality. The starting point was adjusted for aggravating and mitigating factors, resulting in a proposed finite sentence of 15.5 years. However, the court found that preventive detention was necessary due to the defendant's history of sexual offending, the seriousness of the harm caused, and indications of a tendency to commit future sexual or violent offences. The court imposed a sentence of preventive detention with a minimum term of six years, to be followed by treatment programs if the defendant engages meaningfully.

Orders