[1] Mr Martin, you pleaded guilty following a sentence indication to seven charges of sexual violation by unlawful sexual connection;1 one charge of indecency with a boy under 12;2 and one charge of attempted sexual violation by rape.3 All of the charges were brought on a representative basis.

[2] In sentencing you, I will first outline the summary of facts to which you pleaded guilty. I will then turn to your personal circumstances, the pre-sentence report and the victim impact statements. I will set a starting point for the sentence before making adjustments to reflect your personal circumstances, engagement with restorative justice, and guilty plea. Following that I will deal with some mandatory
sentencing matters.

1      Crimes Act 1961, ss 128(1)(b) and 128B(1) (maximum penalty 20 years’ imprisonment).
2      Section 140(1)(a) (maximum penalty 10 years’ imprisonment).
3      Section 129(1) (maximum penalty 10 years’ imprisonment).

R v MARTIN [2017] NZHC 1571 [7 July 2017]

Circumstances of the offending

[3] Mr Martin, the victims of your offending were all relatives of yours, M, H

and K. Your offending against M occurred between September 1993 and December

2001. During this time you were aged 17 to 25 years. M was aged between eight and 15 years. The offending involved you kissing M, making M perform oral sex on you, you performing oral sex on M, inserting your penis into M’s anus, and making M insert his penis into your anus. The offending happened on a number of occasions. M recalls one specific occasion when you were having a party. You and another party goer forced M to sniff petrol. You then forced M to perform oral sex on you.

[4] Your offending against H occurred between September 1993 and December

1998. During this time you were aged 17 to 22 years. H was aged between six and

11 years. For part of this time (November 1995 to February 1996) you and H were both living at a shared relative’s house. The offending involved you touching H’s penis and making H perform oral sex on you. H recalls two specific occasions. The first occurred when H was playing video games in the lounge. You entered the lounge and sat next to him. You put your hand down H’s pants and touched his penis. H ignored you. You continued touching H’s penis for five to 10 minutes. You then smacked the Playstation controller from H’s hands and forced H to perform oral sex on you. The second occasion was when H was approximately 10 years old. You forced H to perform oral sex on you. M was also present on this occasion.

[5] Your offending against K occurred between November 1995 and April 1996. During this time you were aged 19 to…

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 Martin

Details

AGLC: R v Martin [2017] NZHC 1571
Case: [2017] NZHC 1571
Decision Date: 7 July 2017

CaseChat Overview and Summary

The defendant, Terrence Martin, was convicted on a number of charges of sexual violation, indecency and attempted sexual violation. The victims were all relatives of the defendant, and the offending occurred over a number of years when the victims were between the ages of six and 15 years old. The defendant was sentenced following a restorative justice conference which was attended by two of the victims, their families and the defendant. The legal issues before the court were the appropriate starting point for the sentence, any personal aggravating or mitigating factors and whether to impose a minimum period of imprisonment. The court found the starting point for the sentence was 16 years imprisonment, but allowed a discount for the defendant's remorse, participation in the restorative justice conference and his guilty plea. The sentence was ultimately set at 11 years and six months imprisonment, and the court declined to impose a minimum period of imprisonment.

Orders