R v K - [2023] NZHC 726

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

NOTE: PUBLICATION OF NAMES, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2020-070-2507 CRI-2019-087-156

[2023] NZHC 726

THE KING

v

K

Hearing: 4 April 2023

Appearances:

B R Smith for Crown

A F Rickard-Simms for Defendant

Sentence:

4 April 2023

SENTENCING REMARKS OF JOHNSTONE J

Solicitors:
Crown Solicitor, Tauranga

R v K [2023] NZHC 726 [4 April 2023]

Introduction

[1] Mr K, at 54 years of age, you appear for sentence following two jury trials conducted in the Tauranga District Court.

[2] The jury at the first trial, held in July 2022, found you guilty of three offences of sexual violence committed on a single day in 1991 or 1992, against a 25-year-old woman. At the time, you were 22 or 23 years old. The offences, each of which at the time carried maximum sentences of 14 years’ imprisonment,1 were of:

(a)sexual violation by rape;2

(b)sexual violation by unlawful sexual connection;3 and

(c)abduction of a woman or girl for sexual intercourse.4

[3] The jury at your second trial, held in August 2022, found you guilty of 14 offences. These offences were committed against a first victim during the period of eight years from 2003 to 2011, when she was from seven to 13 years old, and against a second victim during the period of five years from 2013 to 2018, when she was from nine to 14 years old. The 12 offences against the first victim, all charged representatively, were:5

(a)four of indecency with a girl under 12 years;6

(b)four of doing an indecent act with a young person under 16 years;7

1      This offending was particularly historic, occurring sometime between 19 June 1991 and 7 April 1992. He is entitled to be sentenced for those charges on the basis of the following maximum sentences which reflect the law at that time.
2      Crimes Act 1961, ss 128(1)(a) and 128B(1). Maximum penalty: 14 years’ imprisonment.
3      Sections 128(1)(b) and 128B(1). Maximum penalty: 14 years’ imprisonment.
4      Section 208. Maximum penalty: 14 years’ imprisonment.
5      Mr K’s offending was a mixture of historic and current. For each charge, the year range and applicable sentence will be noted.
6      Section 133(1)(b). Maximum penalty: 10 years’ imprisonment. Between 14 January 2003 and 12 July 2008.
7      Section 134(3). Maximum penalty: seven years’ imprisonment. Between 13 July 2008 and   14 January 2011.

(c)three of sexual violation by unlawful sexual connection;8 and

(d)one of sexual violation by rape.9

[4]The two offences against the second victim were:

(a)one of sexual violation by rape;10 and

(b)one, charged representatively, of indecent assault on a young person.11

[5] Upon your convictions in the District Court on the above offences, Judge W Lawson considered that a sentence of preventive…

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 K

Details

AGLC: R v K [2023] NZHC 726
Case: [2023] NZHC 726
Decision Date: 4 April 2023

CaseChat Overview and Summary

The defendant, K, was sentenced by Johnstone J in the High Court of New Zealand following convictions for multiple counts of sexual violence against three victims. The offences spanned several decades, from the early 1990s to 2018, and involved severe abuse against children, including rape and other forms of sexual violation. The court considered the aggravating factors of the crimes, such as the prolonged and violent nature of the abuse, the vulnerability of the victims, and the breach of trust. The sentencing process involved determining starting points for each victim, considering personal circumstances, and applying adjustments based on the totality of the offending and the defendant's criminal history.

The court found that the defendant posed a significant risk of reoffending due to his extensive history of sexual and violent crimes, his lack of engagement with rehabilitation programs, and his denial of the offences. Both expert health assessors concluded that the defendant was at high risk of reoffending. The court concluded that a sentence of preventive detention was necessary to protect the community, as the defendant was likely to commit further sexual offences upon release. The sentence included concurrent terms of imprisonment for some offences and preventive detention for others, with a minimum period of imprisonment of 10 years.

Orders