R v Megchelse - [2013] NZHC 251

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-088-005112 [2013] NZHC 251

THE QUEEN

v

CASPER MEGCHELSE

Hearing: 19 February 2013

Counsel: T Robertson for the Crown
J Wickliffe and E McWatt for the Prisoner

Judgment: 19 February 2013

SENTENCING NOTES OF WOOLFORD J

Solicitors:

Crown Solicitor, Auckland.
Public Defence Service, North Shore City, Auckland.

R V MEGCHELSE HC AK CRI-2011-088-005112 [19 February 2013]

Introduction

[1] Mr Megchelse, on 30 November 2012, you were convicted of the following charges after having been found guilty following a jury trial - four counts of sodomy with a person under 16, seven counts of indecently assaulting a female under 12, one count of doing an indecent act with a girl under 12 and four counts of assault on a child.

[2] In relation to the first complainant, K, you are for sentence on:

(a) Four counts of sodomy on a girl under the age of 16, one of which is representative;

(b)Seven counts of indecent assault of a girl under the age of 12 (namely fondling her breasts and vagina and digital penetration of her anus and vagina) three of which are representative; and

(c) Two counts of assault on a child (namely beating her with a belt) one of which is representative.

[3] In relation to the second complainant, L, you are for sentence on:

(a) Two counts of assault on a child (namely beating her with a belt) one of which is representative; and

(b)One count of inducing a girl under the age of 12 to do an indecent act upon you, which is also representative.

[4] The offences are all alleged to have occurred between 1973 and 1977 - in other words, between 36 and 40 years ago.

Facts

[5] On 22 February 1973 Mrs C moved herself and her two daughters, L and K, to live with you in Auckland. K was aged five at this time and L was seven. You were violent towards K, you stripped her naked and whipped her with a belt. You committed these assaults more frequently over time. You would also play a tickling game with K in the bath when you would touch her vagina and breasts. On four occasions you took K into her bedroom, kissed her and digitally penetrated her anus and vagina before penetrating her anus with your penis. On one other occasion you penetrated her anus with your penis while you were in the lounge.

[6] You would also discipline L by beating her with a belt. You would share a bath with L and get her to play with your penis as a ‘special treat”. You were also charged with indecently assaulting, sodomising and raping L and injuring her with intent to injure, but the jury were hung on those offences and you are to be retried on them.

Personal circumstances

Prior Convictions

[7] Mr Megchelse, you have previous convictions for possession for supply and supply of cannabis. You received sentences of nine months supervision and…

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 Megchelse

Details

AGLC: R v Megchelse [2013] NZHC 251
Case: [2013] NZHC 251
Decision Date: 19 February 2013

CaseChat Overview and Summary

The case of R v Megchelse involves the sentencing of Casper Megchelse, who was convicted of multiple charges of sexual offending against two young girls, K and L, occurring between 1973 and 1977. The court had to decide on the appropriate starting point for sentencing, taking into account the historic nature of the offending and the relevant sentencing principles. The Crown recommended a starting point of 12 to 14 years imprisonment, while the defence suggested a starting point of 10 years with an uplift of two years for the offending against L, citing mitigating factors such as the offender's age and ill health. The court considered relevant cases involving historical sexual abuse and found that a starting point of nine years imprisonment was appropriate for the lead offence of sodomy, with an uplift of two years for the additional sexual offending against K and L.

The court took into account the aggravating features of the case, including the breach of trust, the vulnerability of the victims, and the premeditated, prolonged, and repetitive nature of the offending. The court also considered mitigating factors, such as the offender's age and ill health, which led to a reduction of 18 months in the sentence of imprisonment. The court arrived at a final sentence of nine years and six months imprisonment for the charges of sodomy, four years imprisonment for the charges of indecent assault and inducing an indecent act, and one year imprisonment for the charges of assault, all to be served concurrently.

Orders