R v Joe - [2013] NZHC 1047

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-11622 [2013] NZHC 1047

THE QUEEN

v

KITIONA TERE JOE

Hearing: 10 May 2013

Counsel: L MacDonald for Crown
J D Munro for Prisoner

Sentence: 10 May 2013

SENTENCING NOTES OF DOBSON J

Solicitors:
Crown Solicitor, Auckland (lorraine.macdonald@meredithconnell.co.nz)

Counsel:
J D Munro (john@criminallawyersnz.co.nz)

R V JOE HC AK CRI-2012-092-11622 [10 May 2013]

Charges

[1] Mr Joe, on 13 February this year you have entered guilty pleas to four charges of sexual offending against two complainants. I will refer to the older complainant as the first complainant, and the younger complainant as the second complainant. There is one representative charge of sexual violation by unlawful sexual connection involving the first complainant (that is the older boy); one specific charge of doing an indecent act on the second complainant when he was under the age of 12; a representative charge of doing an indecent act on the second complainant when he was aged between 12 and 16; and one representative charge of sexually violating the second complainant by unlawful sexual connection. Convictions were not entered on 13 February, and I now formally convict you on each of those four charges, and so you are now to be sentenced.

[2] On the two charges of sexual violation, the maximum penalty is 20 years’ imprisonment. The maximum penalty for the charge of doing an indecent act on the second complainant when he was under 12 is imprisonment for 10 years, and the maximum penalty for the other charge of doing an indecent act on the second complainant is imprisonment for seven years.

Relevant Facts

[3] The two complainants are brothers, and they are related to you. They and their parents are entirely innocent in this matter, and I will not identify them in any way.

[4] The offending occurred between the beginning of 2004 up to early 2012. Your offending against the first complainant started in 2004 and continued for about four years. Your offending consisted of licking, sucking and kissing his penis and his testicles.

[5] Your offending against the second complainant began in 2005 and continued up until early 2012. On the first occasion, when he was nine or 10, you asked him if he would touch your penis. He said no, and continued to say no after you offered

him money, a watch and takeaway food. You grabbed him, held him down on a bed and stimulated his penis. When the second complainant was a little older, on several occasions you stimulated his penis, and on several occasions you also sucked his penis.

[6] During part of the time when the offending occurred, you were living with the complainants’ family. You were invited to live there because their house was easier for you to live in after your leg was amputated and you were confined to a wheelchair in February 2012.

Victim impact…

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 Joe

Details

AGLC: R v Joe [2013] NZHC 1047
Case: [2013] NZHC 1047
Decision Date: 10 May 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of R v Joe was heard on 10 May 2013. The defendant, Kitiona Tere Joe, pleaded guilty to four charges of sexual offending against two complainants, who were his nephews. The charges included sexual violation by unlawful sexual connection, and doing indecent acts on the complainants when they were under the age of 12 and between 12 and 16. The court was required to determine the appropriate sentence for the defendant, taking into account the principles and purposes of sentencing as outlined in the Sentencing Act 2002. The key issues were the starting point for the sentence, the personal factors relating to the defendant, and whether a minimum term of imprisonment should be imposed.

The court determined the starting point for the sentence by reference to the two charges of sexual violation, which were the most serious. The court found that the defendant's offending fit within band two of the sentencing bands set out in the Court of Appeal judgment in R v AM, due to the breach of trust, the harm done to the complainants, the scale of the offending, and the fact that it extended over a period of eight years. The court accepted the Crown's submission that the starting point should be between eight and ten years' imprisonment, and ultimately set the starting point at eight years and six months' imprisonment. The court considered various personal factors relating to the defendant, including his previous convictions for similar offending, his high risk of re-offending, and his physical condition. The court applied a reduction of six months on account of the defendant's physical state and the relative severity for him of imprisonment, bringing the adjusted starting point back to eight years' imprisonment. The court also considered the defendant's guilty pleas, and accepted the Crown's submission that a 20% discount was appropriate, resulting in a sentence of six years and five months' imprisonment. The court imposed a minimum term of imprisonment of three years and two months for the purposes of deterrence and to protect the community.

The court ordered that the defendant be given a three strikes warning under the three strikes legislation, as his offending against the second complainant occurred after the "three strikes" law came into effect. The defendant was warned that if he is convicted of any one or more serious violent offences other than murder committed after this warning, and if a Judge imposes a sentence of imprisonment, he will serve that sentence without parole or early release. If he is convicted of murder committed after this warning, then he must be sentenced to life imprisonment without parole, unless it would be manifestly unjust to do so. The sentences for the charges of sexual violation by unlawful sexual connection were set at six years and five months' imprisonment each, the sentence for the charge of doing an indecent act on a boy under 12 was set at three years' imprisonment, and the sentence for the charge of doing an indecent act on a boy aged between 12 and 16 was set at two years' imprisonment. All sentences were to be served concurrently, with an effective term of imprisonment of six years and five months, of which the defendant was to serve a minimum of three years and two months.

Orders