R v John

Case [2018] NZHC 89 9 February 2018

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

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-Ā-TARA ROHE

CRI-2017-085-690 [2018] NZHC 89

THE QUEEN

v

JOSEPH JOHN

Hearing: 9 February 2018

Counsel:

S C Carter for Crown
I M Antunovic for Defendant

Sentencing:

9 February 2018

SENTENCING NOTES OF THOMAS J

Introduction

[1] Mr John, you have been found guilty by a jury of the following charges: (a) sexual violation of Victim 1 by rape on 26 May 2016;
(b) sexual violation of Victim 2 by rape on 21 February 2017; and

(c) sexual violation of Victim 2 by unlawful sexual connection on the same day, 21 February 2017.

R v JOSEPH JOHN [2018] NZHC 89 [9 February 2018]

[2] In sentencing you, I will first outline the summary of facts, having heard the evidence at trial. I will then turn to the victim impact statements, your personal circumstances, and the pre-sentence and other reports. I will set a starting point for the sentence before making adjustments to reflect your personal circumstances.

Facts

[3] Victim 1 was about 18 years old at the time of the offending and you were about 22.

[4] You had met on two occasions before the incident and had been in contact through text. On 26 May 2016, you had arranged to see a movie with her. You were in central Wellington, drank some alcohol and looked around some shops. You were unable to see the movie and for a time sat in your car in the carpark of the Arlington Flats in Wellington, drinking, talking and listening to music. You ended up in a carpark in Upper Hutt where you both moved into the back seat of the vehicle. You continued to consume alcohol as you listened to music. Victim 1 removed her shoes to get comfortable.

[5] You tried to kiss Victim 1 but she rejected you, saying she had a girlfriend and did not want to cheat on her. You attempted to kiss her again but she pushed you off. Victim 1 was wearing a dress and you began to remove her underwear. She tried to pull up her underwear, saying, “Get off me, let go of my undies”. You were successful in removing her underwear completely. You pushed her into the side door of the vehicle so she was lying on her back and you raped her. She punched you several times in the head, yelling, “Get off me”. She dug her nails into the skin of your back and was screaming and crying throughout. You asked her, “Why are you crying?”, to which she replied, “You’re raping me”. At some stage Victim 1’s mobile phone began to ring and she asked you if she could answer the phone to contact her mother. At this point, you got off her and she was able to grab her cellphone, kick you…

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 John

Details

AGLC: R v John [2018] NZHC 89
Case: [2018] NZHC 89
Decision Date: 9 February 2018

CaseChat Overview and Summary

Joseph John was convicted of multiple sexual offences, including the rape of two victims, one of whom was underage. The High Court of New Zealand was tasked with sentencing John, considering the severity of the crimes, the vulnerability of the victims, and John's background and potential for rehabilitation. The court assessed the aggravating factors, such as the use of violence, the vulnerability of the victims, the extent of harm inflicted, and the fact that John had offended against two victims within a short period. Victim impact statements highlighted the profound emotional and psychological harm suffered by the victims, which informed the court's sentencing decision. The court also considered John's personal circumstances, including his background as a refugee from Uganda and his lack of previous convictions.

The court examined whether preventive detention was appropriate but concluded that, while John posed a risk of reoffending, this could be managed through imprisonment and potential treatment. In setting the sentence, the court applied a cumulative approach, considering the totality of the offending. The starting point for the offences against Victim 1 was determined to be seven years' imprisonment, and for Victim 2, it was nine years. After applying discounts for John's age and previous good character, and considering the need for accountability and deterrence, the court imposed a sentence of 11 years and six months' imprisonment for the rape of Victim 2, six years and six months for the rape of Victim 1, and four years for the unlawful sexual connection with Victim 2, to be served concurrently, with a minimum period of imprisonment of six years.

Orders