R v L - [2014] NZHC 2471

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S
204 OF THE CRIMINAL PROCEDURE ACT 2011.

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF PRISONER PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-032-003540 [2014] NZHC 2471

THE QUEEN

v

L

Counsel:
G A Kelly for Crown

E A Hall and S R Lack for Prisoner

Sentence:

10 October 2014

NOTES ON SENTENCE OF COLLINS J

Introduction

[1] Mr L, you appear for sentence in relation to 15 charges. I am sentencing you because on 24 January 2014 the District Court Judge who presided over your trial referred your case to this Court so that consideration could be given to imposing a sentence of preventive detention.

[2] You were convicted of:

R v L [2014] NZHC 2471 [10 October 2014]

(1)four charges of sexual conduct with a child under 12 (charges 1, 2, 3 and 5);1

(2) one charge of sexual conduct with a child under 16 (charge 15);2

(3) five charges of sexual violation by unlawful sexual connection

(charges 7, 8, 9, 11 and 12);3 and

(4)one charge of attempted sexual violation by unlawful sexual connection (charge 10).4

[3] You pleaded guilty to four charges (charges 14, 16, 17 and 18) on the first morning of the trial. You were found not guilty of sexual conduct with a child (charges 4 and 6) and attempted sexual violation by rape (charge 13).

[4] The present offending involves one victim and spans from 2007 to 2012. A

number of the charges are representative charges.

[5] The crucial question I have had to consider is whether you should be sentenced to preventive detention or a long finite period of imprisonment.

[6] I have decided, by the narrowest of margins, to sentence you to a long finite period of imprisonment.

[7] In sentencing you I shall:

(1)describe your offending and the impact of your offending on your victim;

(2) examine your previous offending;

(3) review your personal circumstances;

1      Crimes Act 1961, s 132(3). Maximum penalty is 10 years’ imprisonment.
2      Section 134(3). Maximum penalty is seven years’ imprisonment.
3      Section 128B(1). Maximum penalty is 20 years’ imprisonment.
4      Section 129. Maximum penalty is 10 years’ imprisonment.

(4) explain why I am not imposing preventive detention; (5) explain the starting point to your sentence;
(6)explain the adjustments that I am making to that starting point to reflect:

· the totality of your offending; and

· your prior offending.

(7) set out the minimum period of imprisonment that you must serve; and

(8) explain your final sentence.

The offending and its impact on your victim

[8] Your victim is your granddaughter. Over a five-year period between 2007 and 2012 you engaged in indecent touching, digital penetration and oral sex with your victim when she was between the ages of nine and 14.

[9] Your offending involved an abuse of your position as a grandfather to your victim…

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 [2014] NZHC 2471
Case: [2014] NZHC 2471
Decision Date: 10 October 2014

CaseChat Overview and Summary

Mr L, the offender, was convicted of multiple charges of sexual offending against his granddaughter, including sexual conduct with a child under 12, sexual conduct with a child under 16, sexual violation by unlawful sexual connection, and attempted sexual violation by unlawful sexual connection. The offences occurred between 2007 and 2012, and involved various forms of sexual abuse. The court had to decide whether to impose a sentence of preventive detention or a long finite period of imprisonment.

The primary legal issues involved whether the defendant's previous history of similar sexual offences, his age, and health conditions warranted a sentence of preventive detention or if a finite sentence would be sufficient. The court also had to consider the impact of the offending on the victim, the principles of sentencing, and the purposes and principles of the Sentencing Act 2002.

After careful consideration, the court decided to sentence Mr L to a long finite period of imprisonment of 14 years. The court found that while the defendant's pattern of offending and the seriousness of the harm caused warranted a sentence close to preventive detention, there were mitigating factors that made a finite sentence more appropriate. The court believed that the defendant should be given the opportunity to participate in a sexual offender treatment programme, and that a finite sentence was preferable given his age and health circumstances. The court also found that the defendant's previous offending, which involved similar abuse against his daughter, warranted an uplift in the starting point of the sentence.

The final orders were that Mr L was to be sentenced to 14 years’ imprisonment for the most serious charges, and five years’ imprisonment for all other charges, to be served concurrently. However, he must serve a minimum period of seven and a half years’ imprisonment before being eligible for parole. The court also ordered suppression of publication of the defendant's name to protect the identity of the victim.

Orders