R v McCord - [2013] NZHC 3261

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-090-001262 [2013] NZHC 3261

THE QUEEN

v

EUGENE HAPIE MCCORD

Hearing: 6 December 2013

Appearances: W P Cathcart for Crown
M J English and A M Rice for Prisoner

Sentence date: 6 December 2013

SENTENCING NOTES OF COURTNEY J

R v MCCORD [2013] NZHC 3261 [6 December 2013]

[1] Eugene McCord, you appear for sentence today on two counts of indecent assault to which you have pleaded guilty in the District Court. The District Court declined jurisdiction to sentence you on the grounds that you are eligible for a sentence of preventive detention and the Crown seeks that today.

[2] The two charges arise out of a single incident in which you were visiting your elderly neighbour. The complainant was 77 years old at the time of the offence. She lived alone. On 5 February this year you went to her house and talked with her. To start with you were sitting on a chair and she was sitting on a couch. You then moved and sat close to her on the couch. You tried to put one of your hands on her leg and at one stage put one of your arms around her neck. According to the agreed summary, which I note here is very unsatisfactory, you then tried to put your hand over her vagina on top of her clothing and pushed down. The complainant pushed your hands away. You referred to wanting to have sex with her and said words to the effect of ‘what’s the point of being here and talking when we can be together?’ You tried to put your hand over her vagina again and this time she pushed you away and stood up, telling you to get out.

[3] It is evident from the complainant’s victim impact statement that the offending has had a significant impact on her. She feels vulnerable and unsafe in her home. She has installed security gates. Her grandchildren are no longer allowed to come and stay with her because their parents regard her neighbours as unsafe. Your actions have changed her once safe and happy home into a place where she no longer feels safe and is deprived of the company that gave her such pleasure.

[4] As I have mentioned, the Crown today seeks an order for preventive detention. The purpose of such a sentence is to protect the community from those who pose significant risk to others in an ongoing basis. For reasons I will come to, you are one of those people. But for the reasons I will also come to, I am not going to impose a sentence of preventive detention. In doing so, I would have had to take into account the pattern of serious offending that is disclosed by your history, the seriousness of the harm to the community caused by your offending, information that indicates a tendency to commit offences in future and the absence or failure of efforts on your…

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 McCord

Details

AGLC: R v McCord [2013] NZHC 3261
Case: [2013] NZHC 3261
Decision Date: 6 December 2013

CaseChat Overview and Summary

The case of R v McCord is a sentencing decision by the High Court of New Zealand. Eugene Hapie McCord was sentenced on two counts of indecent assault to which he had pleaded guilty. The District Court had declined to sentence him due to his eligibility for preventive detention, a matter which the Crown sought to address. The offences were committed against a 77-year-old woman who lived alone, involving McCord attempting to touch the woman inappropriately and propositioning her for sexual activity.

The legal issues before the court were the appropriateness of imposing a preventive detention order and determining an appropriate sentence if such an order was not to be made. The court had to consider McCord's criminal history, the seriousness of the current offences, and expert evidence indicating a high risk of future offending. The Crown argued for preventive detention based on McCord's extensive history of sexual and other serious offences, while the defence counsel referenced similar cases to argue against such a sentence.

The court decided against imposing a preventive detention order, citing similarities to a previous case where the Court of Appeal had expressed reservations about such sentences. However, the court emphasised the significant risk posed by McCord and the likelihood of a preventive detention order in the future. Instead, the court imposed a concurrent sentence of three years and three months imprisonment, with a minimum term of two years and two months before parole eligibility. The court also warned McCord about the implications of the three strikes legislation, which would mandate life imprisonment without parole for any future serious violent offences.

The final orders included a warning under the three strikes legislation and a requirement for McCord to serve at least two years and two months of his sentence before becoming eligible for parole. The court urged McCord to seek help during his incarceration and upon release to address the underlying issues contributing to his criminal behaviour.

Orders