R v King

Case [2019] NZHC 537 22 March 2019

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-004-010995

[2019] NZHC 537

THE QUEEN

v

DEAN BROOK KING

Hearing: 22 March 2019

Appearances:

Nick Webby and David Green for the Crown Jane-Frances O’Halloran for the Defendant

Judgment:

22 March 2019

SENTENCING NOTES OF MOORE J

R v KING [2019] NZHC 537 [22 March 2019]

Introduction

[1] Dean Brook King, at the age of 34, you appear for sentence having pleaded guilty on 27 June 2017 to the following five charges:

(a)sexual violation by unlawful sexual connection;1

(b)abduction for the purposes of sexual connection;2

(c)robbery;3

(d)assault with a weapon;4 and

(e)possession of an offensive weapon.5

[2] The Crown seeks a sentence of preventive detention. Your lawyer, Ms Prasad, presses for a finite sentence. And so, as is customary in cases of this kind, I shall approach this sentencing in two stages:

(a)first, I shall fix a finite sentence and set any minimum period of imprisonment (“MPI”); and

(b)then I shall decide whether you should be subject to preventive detention and if so, the length of the MPI to accompany that sentence.

[3] If I decide against the imposition of preventive detention, you will receive the finite sentence and any MPI I determined at the first stage.

Facts

[4] I now turn to set out the background to your offending. I do so by reference to the summary of facts which, by your guilty pleas, you accept as true.

1      Crimes Act 1961, ss 128(1)(b) and 128B(1); the maximum penalty is 20 years’ imprisonment.
2      Section 208(b); the maximum penalty is 14 years’ imprisonment.
3      Section 234; the maximum penalty is 10 years’ imprisonment.
4      Section 202C; the maximum sentence is five years’ imprisonment.
5      Section 202A(4)(b); the maximum sentence is three years’ imprisonment.

[5] The facts will obviously be well-known to you but because sentencing is a quintessentially public function it is necessary that I traverse the facts in open Court.

[6] On 26 October 2016 the 25-year old victim was walking to work along Mount Albert Road, in Mount Roskill, Auckland. It was early in the morning; about 5:00 am. As she passed some public toilets, you approached her and wrapped your arm around her neck. You held a knife to her stomach and dragged her into the toilets. You told her, “Do as you’re told or die.” She begged you not to kill her. You repeated that you would kill her if she did not comply.

[7] Once inside the toilets, you pulled down her jeans and underwear and attempted to insert your penis into her anus. You were unsuccessful. So you forced her to her knees and made her perform oral sex on you. Once this was over, you demanded that she swallow your ejaculate.

[8] But that was not the end of your victim’s ordeal. After leaving the toilets, you lead her to a nearby ATM. You made her withdraw $20. Only then did you leave her.

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 King

Details

AGLC: R v King [2019] NZHC 537
Case: [2019] NZHC 537
Decision Date: 22 March 2019

CaseChat Overview and Summary

Dean Brook King was convicted of five charges including sexual violation by unlawful sexual connection, abduction for the purposes of sexual connection, robbery, assault with a weapon, and possession of an offensive weapon. The court was required to determine the appropriate sentence for King, specifically whether he should receive a finite sentence or be subject to preventive detention. The court also had to decide on the minimum period of imprisonment if a finite sentence was imposed.

In delivering the judgment, the court first set a starting point of 10 years' imprisonment based on the seriousness of the offending and the factors of premeditation, violence, harm to the victim, vulnerability of the victim, and degree of violation. The court then considered personal factors such as King's criminal history, mental impairment, and guilty pleas. A provisional sentence of 11 years' imprisonment was determined, before applying a 25% discount for the guilty pleas, resulting in a finite sentence of eight years and three months' imprisonment. The court also imposed a minimum period of imprisonment of five years and six months.

In deciding whether to impose preventive detention, the court considered factors such as any pattern of serious offending, the seriousness of the harm, King's tendency to commit serious offences in the future, the absence of efforts to rehabilitate, and the principle that a lengthy determinate sentence is preferable. The court concluded that a finite sentence was appropriate as King was not likely to commit another qualifying offence when released, and the lengthy finite sentence was sufficient to protect the community.

In conclusion, the court sentenced King to eight years and three months' imprisonment on the charge of sexual violation by unlawful sexual connection, four years' imprisonment on the charge of abduction for the purposes of sexual connection, one year's imprisonment on the charge of robbery, one year's imprisonment on the charge of assault with a weapon, and six months' imprisonment on the charge of possession of an offensive weapon. All sentences were to be served concurrently, and a minimum period of imprisonment of five years and six months was imposed.

Orders