R v McLean HC Rotorua T001096 - [2001] NZHC 367

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY T001096

THE QUEEN

C A McLEAN

Dates of hearing: 27-30 March, 2 and 3 April 2001

Date of sentencing: 11 May 2001

Counsel: John McDonald and Nicky Utting for the Crown
David Bates and Matthew Bates for the accused

SENTENCING OF CHAMBERS J

Reminder to the media

[1] I begin with a reminder to the media because I note that there are many representatives of the news media here today. While I have discharged the suppression order made by Randerson J on 3 August last year, I remind the media of the restriction on publication imposed by s 139 of the Criminal Justice Act 1985. Under that section, no one may publish, in any report or account relating to any proceedings commenced in any court in respect of an offence against any of ss 128 to 142A of the Crimes Act 1961, or in respect of any offence against s 144A of that Act, the name of any person upon or with whom the offence has been or is alleged to have been committed, or any name or particulars likely to lead to the identification of that person. Mr McLean is today being sentenced in respect of an offence against s 128. Accordingly, the name of the complainant may not be published. Nor may any names or particulars likely to lead to her identification be published.

[2] While in this sentence I shall not be mentioning the complainant’s name, I shall be giving particulars which, if published, would be likely to lead to her identification, and counsel too have made submissions which, if published verbatim, would be likely to lead to the complainant’s identification. So, members of the news media, you will need to be alive to that fact. Publishing my sentencing comments verbatim would accordingly breach the Parliamentary restrictions imposed by s 139. Please bear that in mind and, if in doubt, err on the side of caution.

The facts

[3] Mr McLean, you appear today for sentence on two charges in respect of which the jury found you guilty. One is a charge of sexual violation by rape. The other is a charge of assault by a male upon a female.

[4] I deal first with the rape. That took place on 12 December 1997 at the complainant’s mother’s house. Your defence was that no sexual intercourse took place. The jury believed the complainant that sexual intercourse did take place and took place without her consent. The jury obviously disbelieved your denial. I appreciate from the probation report and from what your counsel, Mr David Bates, has said, that you maintain your innocence. Of course, as Mr Bates has acknowledged, I must ignore that. In sentencing you, I must sentence you on the basis of the jury’s finding of guilt.

[5] The rape occurred after you and the complainant returned from a social function. You went into a bedroom in the house. The complainant got into the bed…

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.

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Details

Case: [2001] NZHC 367
Decision Date: 11 May 2001

CaseChat Overview and Summary

In the High Court of New Zealand, Rotorua Registry, the case of The Queen versus C A McLean involved sentencing for two charges of which the defendant was found guilty: sexual violation by rape and assault by a male upon a female. The court had to decide on the maximum penalties applicable to each offence and whether there were any aggravating or mitigating factors to consider in sentencing. The maximum penalty for the rape, not involving home invasion, was 20 years imprisonment, while for the assault charge, the maximum penalty was 2 years imprisonment. The court considered the starting point for sentencing rape to be 8 years imprisonment, and took into account the mitigating and moderating factors presented by both the prosecution and defence counsel. Ultimately, the court decided on a 5-year imprisonment sentence for the rape charge, reduced from the starting point of 8 years, and a concurrent 14-day imprisonment sentence for the assault charge. The total prison sentence was set at 5 years. The court also considered a sentence of reparation under the Criminal Justice Act, but determined that the defendant did not have the means to make a payment.

Orders