R v Kelly - [2018] NZHC 3183

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE

CRI-2017-090-003683 [2018] NZHC 3183

THE QUEEN

v

MONIKA RACHAEL KELLY

Hearing: 7 December 2018

Counsel:

BM Finn for Crown
RM Mansfield and B Kirkpatrick for Defendant

Judgment:

7 December 2018

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:
Crown Solicitor, Auckland. RM Mansfield, Auckland.
B Kirkpatrick, Auckland.

R v KELLY [2018] NZHC 3183 [7 December 2018]

Introduction

[1] Ms Kelly, you are for sentence on a representative charge of dealing in a person aged under 18 years for sexual exploitation.1 You were to be tried by me, without a jury, on Monday, 24 September this year. On Thursday 20 September, you pleaded guilty.

Facts

[2] Your victim was only 14 years old throughout the offending.

[3] You met her through a mutual friend, who was 19. You too were that age. The victim initially told you she was 15. You quickly asked her if she wanted to be a prostitute for you. The victim’s life was then messy: she was “running away from home [and] having a rough patch”.2 She came to live with you for approximately six weeks.

[4] After the victim moved in, you again raised with her the topic of prostitution. You spoke to her about a digital application, or “App”, called Seeking Arrangements. Either then or a little later, you created a profile of the victim for this App. You gave her an alias. You recorded her age as 18 or 19 years; you gave her an amended date of birth. The victim played no part in your creation or composition of her profile.

[5] You then communicated with potential customers through the App. Your offending concerns a male I call “male A”.

[6] On four occasions between 19 March 2017 and 25 April 2017, you arranged for male A to use the victim sexually. My choice of the word “use” is deliberate. On each occasion:

(a) You arranged to deliver the victim to male A, either at an office building or hotel. Normally, you would then wait for her.

1 Crimes Act 1961, s 98AA(1)(a)(i).
2 Victim impact statement.

(b) You negotiated price with male A. For example, his second occasion with the victim was to last 90 minutes. You agreed on the price of $350. The third occasion was to be a “quickie” only. You agreed to a lesser price of $200.

(c) You were paid (by internet banking), and gave some of the money to the victim.

(d) Male A had full sexual intercourse with the victim.

[7] One two occasions, you agreed another man or additional men could accompany male A, and have sexual intercourse with the victim too. But, this never happened. On one occasion, you also agreed male A could film the victim. It is unknown if he did.

[8] After the first occasion, your mutual friend and the victim told you her real age.

[9] In July 2017, you learned of the Police…

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 Kelly

Details

AGLC: R v Kelly [2018] NZHC 3183
Case: [2018] NZHC 3183
Decision Date: 7 December 2018

CaseChat Overview and Summary

Monika Rachael Kelly was sentenced by Downs J in the High Court of New Zealand for repeatedly dealing with a person under 18 for sexual exploitation. The court heard that Kelly, who was 19 at the time of the offending, met the victim, who was 14, through a mutual friend. Kelly created a profile for the victim on a digital application called Seeking Arrangements, falsely recording her age as 18 or 19. Over four separate occasions, Kelly arranged for the victim to engage in sexual acts with a male for payment, and on two occasions, agreed that additional men could participate. Kelly also took steps to obstruct the police investigation, which led to a separate charge of attempting to pervert the course of justice. The court considered the aggravating features of the offending, including the calculated nature of the crimes, the vulnerability of the victim, and Kelly's attempts to interfere with the investigation. The court also considered mitigating factors, such as Kelly's young age, her background, and her guilty plea. Ultimately, the court determined that a sentence of two and a half years' imprisonment was appropriate, given the seriousness of the offending and the need for denunciation.

The court rejected the defence's argument for home detention, stating that the offending was too serious to warrant such a sentence. The court also considered the impact of the sentence on Kelly's son, reducing the sentence by five percent in recognition of this. The court acknowledged that Kelly had a difficult background, but found that this did not unequivocally link to her offending. The court also found that Kelly's guilty plea, while saving the taxpayer the expense of a trial, did not warrant a significant discount due to her late plea and her dispute over the victim's age. Overall, the court found that a sentence of two and a half years' imprisonment was appropriate, given the circumstances of the case.

Orders