R v L - [2022] NZHC 2364

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS OF AGE PROHIBITED BY S 204 OF THE CRIMINAL

PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2020-054-1227

[2022] NZHC 2364

THE KING

v

L

Hearing: 15 September 2022

Appearances:

G J C Carter for the Crown

D M Goodlet for the Defendant

Sentence Date:

15 September 2022

SENTENCING OF COOKE J

[1] Mr L you appear for sentencing after being found guilty of one charge of sexual violation by rape at the Palmerston District Court on 25 February 2022. The victim of your offending is your biological daughter who was aged 14 years at the time. Your sentencing was transferred to this Court given the application by the Crown that you be sentenced to preventive detention.

R v L [2022] NZHC 2364 [15 September 2022]

Background

[2] You and the mother of your daughter separated in 2019, after a 16 year-long relationship. You have four children together who all live with their mother. At the time of the offending the children were at your home for a period of time over the school holiday break.

[3] On the evening of Wednesday 24 April 2019 you were at your home with your children. Around 7 pm the children got ready for bed. Three of the younger children put themselves to bed in bedrooms situated downstairs. You insisted that the eldest child, your daughter, sleep on an air bed on the floor of your bedroom.

[4] Your daughter began to undress and prepared to go to bed when she noticed her pyjamas had been removed from where they had been. She dressed in a bathrobe instead and had no clothes on underneath. While she got ready for bed, you removed the door handle from inside the room. You achieved this by removing the spindle from inside the door mechanism so that the door could no longer be opened from inside the bedroom. When she asked what you were doing, you said it was to stop the dog from getting into the bedroom.

[5] You then removed your pants so you were in your underwear and got into your own bed. You then told her to get into bed with you, because you two were going to watch a scary movie. Once she got into bed you pushed her down and rolled over so you were on top of her. You removed your underwear and held the her down onto the bed, exposing her body under the bathrobe and raped her.

[6] Following this your daughter located the spindle and handle nearby and managed to open the door and leave the room. She locked herself in a downstairs bathroom and texted her mother to pick her up first thing in…

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 L

Details

AGLC: R v L [2022] NZHC 2364
Case: [2022] NZHC 2364
Decision Date: 15 September 2022

CaseChat Overview and Summary

In the case of R v L, the defendant, Mr. L, was sentenced for sexually violating his 14-year-old daughter. The sentencing hearing took place in the High Court of New Zealand at Palmerston North on 15 September 2022. Mr. L was found guilty of the charge at the Palmerston District Court on 25 February 2022.

The legal issues that the court had to decide included determining an appropriate starting point for the sentence by assessing the defendant's culpability, taking into account factors personal to the defendant, deciding if a minimum period of imprisonment was necessary, and determining whether preventive detention was appropriate. The court also had to consider the aggravating and mitigating factors relevant to the case.

The court started by determining an appropriate starting point for the sentence based on the principles and purposes of sentencing, taking into account the defendant's culpability. The court found that the defendant's offending fell into band two for sexual violation by rape, which carries a sentence of seven to 13 years. The court agreed with the Crown that the starting point should be 11 years imprisonment, considering factors such as planning and premeditation, vulnerability, and breach of trust.

Next, the court considered personal aggravating and mitigating circumstances. The court found no mitigating factors and considered personal aggravating circumstances arising from the defendant's prior offending of a similar kind. The court decided on an uplift of a finite sentence by one year, taking the finite sentence to 12 years' imprisonment. The court then assessed whether a minimum period of imprisonment was necessary and decided on an MPI of eight years.

Finally, the court considered the Crown's application for a sentence of preventive detention. The court found that while there was a pattern of serious sexual offending and the seriousness of harm caused by the offending was significant, the defendant had not cooperated with the psychologists, and the extended supervision order (ESO) regime provided an alternative that appropriately addressed the risks. The court decided against imposing the sentence of preventive detention.

In conclusion, Mr. L was sentenced to 12 years imprisonment for the charge of sexual violation by rape, with a minimum period of imprisonment of eight years.

Orders