R v Lindsay - [2021] NZHC 2160

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

ORDER PROHIBITING PUBLICATION OF THE PSYCHOLOGICAL REPORT PREPARED BY MR JIM VAN RENSBURG, WITH THE

EXCEPTION THAT THE MEDIA MAY REPORT THAT MR VAN RENSBURG DID NOT VIEW A CUSTODIAL SENTENCE AS NECESSARY AND THAT HE RECOMMENDED THAT A COMMUNITY SENTENCE WITH STANDARD CONDITIONS WOULD BE APPROPRIATE.

ORDER PROHIBITING PUBLICATION OF THE ADDRESS AT WHICH THE SENTENCE OF HOME DETENTION IS TO BE SERVED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-004-007093

[2021] NZHC 2160

THE QUEEN

v

GRAEME CHARLES LINDSAY

Hearing: 17 August 2021

Appearances:

J Barry and A Mateni for Crown

N P Chisnall and L A Elborough for Defendant (Mr Lindsay appearing by AVL from District Court in Levin)

Sentencing:

17 August 2021

SENTENCING NOTES OF WYLIE J [REDACTED]

R v LINDSAY [2021] NZHC 2160 [17 August 2021]

Introduction

[1] Mr Lindsay, you may remain seated until I ask you to stand. You appear for sentence today having entered guilty pleas to two charges – the first of having indecently assaulted a boy under the age of 16,1 and the second of committing an indecent act upon another boy, also under the age of 16 years.2

[2] Both offences are historic, having been committed in 1974/1975. At the time, the maximum penalty for the offences was 10 years’ imprisonment. The statutory provisions under which the charges were laid have been repealed.3 The maximum sentence of imprisonment available in respect of such offending is now one of seven years.4 You are entitled under our law to the benefit of the lower maximum penalty.5

Relevant facts

[3] Your offending came to light as part of Operation Beverly, a police investigation into allegations of historic sexual abuse by individuals associated with the Dilworth School. You were not charged during the first phase of the operation. Rather, your offending came to light as a consequence of media attention to the first phase of the operation.

[4] The charges against you relate to offending against two complainants, D and S, when they were aged 12-13 years and you were around 24 to 26 years old.

[5] In 1974 and 1975, you were an assistant Scout leader for the Hauraki Scout Group and a Scout leader for the Dilworth School Scout Group. You were also a tutor at Dilworth School. In your role as a Scout leader, you were responsible for leading and organising various scouting activities such as tramping and camping trips.

[6] The first offence occurred during 1975. You had organised for a group of Scouts from the Dilworth School to go on an overnight camp. During the night, you

1      Crimes Act 1961, s 140(1)(a) (repealed).
2      Section 140(1)(c) (repealed).
3      Crimes Amendment Act 2005, s 7.
4      Under the equivalent section – s 134(3) (sexual conduct with young person under 16).
5      New Zealand Bill of…

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 Lindsay

Details

AGLC: R v Lindsay [2021] NZHC 2160
Case: [2021] NZHC 2160
Decision Date: 17 August 2021

CaseChat Overview and Summary

The defendant, Graeme Charles Lindsay, was sentenced for two charges of indecent assault and committing an indecent act upon two boys under the age of 16, committed in 1974/1975. The court was required to determine the appropriate starting point for sentencing, considering the aggravating and mitigating factors of the case. The starting point was determined to be 24 months’ imprisonment, taking into account the breach of trust, extent of touching, scale of offending, age disparity, and harm caused to the victims. Various mitigating factors were also considered, such as the defendant's good character, remorse, and guilty pleas.

The court considered the defendant's personal circumstances, including his age, ill health, and rehabilitative efforts. A discount of 45 per cent was allowed, reducing the starting point to 13 months’ imprisonment. The court then evaluated whether home detention or imprisonment was appropriate, ultimately deciding on concurrent sentences of home detention for six months and two weeks for each charge. Special conditions were imposed, including attending an assessment for Wellstop and completing any recommended counselling or treatment. The court also considered the Child Sex Offenders’ Register but decided that the threshold for registration had not been met.

The court made suppression orders under the Criminal Procedure Act 2011, prohibiting the publication of certain information, such as the psychological report and the address at which the sentence of home detention is to be served.

Orders