R v KJB

Case [2007] NZCA 292 17 July 2007

No judgment structure available for this case.

Type to search within this case.

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED: S 139(1) CRIMINAL JUSTICE ACT 1954

IN THE COURT OF APPEAL OF NEW ZEALAND

CA41/07 [2007] NZCA 292

THE QUEEN

v

KJB(CA41/07)

Hearing: 22 May 2007
Court: William Young P, Baragwanath and Heath JJ Appearances: L L Heah for Appellant
D La Hood for Crown

Judgment: 17 July 2007 at 2 pm

JUDGMENT OF THE COURT

A The time for appealing against sentence is extended.

B The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Heath J)

R V KJB CA CA41/07 17 July 2007

The appeal

[1] KJB seeks an extension of time to appeal against a sentence of 10 years imprisonment imposed following his conviction on fifteen charges involving historical sexual abuse. The ground of appeal is manifest excess. At the time that sentence was passed KJB was 62 years old.

Background

[2] KJB and his wife were charged with a number of serious sexual offences of an historical nature. The victims were their three daughters. KJB faced 16 charges. His wife faced two. They were tried in the High Court at Rotorua in July 2005, before Nicholson J and a jury.

[3] The offending began in April 1969 and continued until December 1990. The Crown accepted that KJB was the principal offender, the two charges against Mrs B were brought on the basis that she was a party to his offending. KJB was found guilty on all but one of the charges brought against him; his wife was found guilty on one of the two charges she faced.

[4] On 9 September 2005, KJB was sentenced to an effective term of imprisonment of 10 years. His wife was sentenced to a term of one year two months imprisonment and was granted leave to apply for home detention. She has not appealed against the sentence imposed upon her.

[5] So far as KJB was concerned, the Judge’s approach to sentencing was to impose concurrent sentences for all charges on which the jury returned guilty verdicts. The Judge chose a charge of sexual violation by rape as the lead charge for sentencing purposes. That particular charge spanned the period between 1 February
1986 and 6 March 1987.

[6] All offending took place before the maximum penalty for sexual violation offences was increased from 14 to 20 years imprisonment, following enactment of

the Crimes Amendment Act (No 3) 1993. For that reason, the guideline decision of

R v A [1994] 2 NZLR 129 (CA) has no application in this case.

[7] Taking a starting point of 12 years imprisonment on the lead charge, the Judge made an allowance of two years for mitigating factors. Those factors were KJB’s age at the time of sentencing, his history of bad health, the likelihood of continued poor health and previous good character. As a result, an end sentence of
10 years imprisonment was imposed. The Judge was satisfied that the sentence reflected the totality of the offending.

[8] Although KJB was…

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 KJB

Details

AGLC: R v KJB [2007] NZCA 292
Case: [2007] NZCA 292
Decision Date: 17 July 2007

CaseChat Overview and Summary

KJB appeals against the sentence of 10 years imprisonment imposed following his conviction on fifteen charges involving historical sexual abuse of his three daughters. The ground of appeal is manifest excess. At the time that sentence was passed KJB was 62 years old. The Crown has not opposed an extension of time for the appeal to be brought. The time for appealing against the sentence is extended but the appeal is dismissed. The Court found that the starting point of 12 years imprisonment was appropriate. The Court also found that there was no basis on which they could interfere with the discretionary assessment of an allowance for mitigating circumstances.

Orders