R v MH - [2013] NZHC 709

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2012-069-1343 [2013] NZHC 709

THE QUEEN

v

MH

Hearing: 9 April 2013

Counsel: A F Pilditch & S T Simmers for Crown
A T Sykes & T T Tuari for Prisoner

Judgment: 9 April 2013

SENTENCE OF KEANE J

Solicitors:
Crown Solicitor, Rotorua

R V MH HC ROT CRI 2012-069-1343 [9 April 2013]

[1] MH, you appear for sentence for two offences on 7 January 2012, indecently assaulting your niece S, a girl then aged 12 years, and immediately afterwards, it is now agreed, injuring K, another niece of yours, aged 17, with reckless disregard for the safety of others.

[2] You are for sentence in this Court because jurisdiction was declined in the District Court out of a fully justifiable concern that you may qualify for a sentence of preventive detention. That is the principal issue I have to resolve today.

[3] When you first appeared on 5 February 2013 I adjourned sentence to find out more about your offending against adolescent girls, and your conduct in custody, most recently on remand. I have not found what I now know to be reassuring.

[4] Equally, I have heard today from one member of your family especially, who sees you in a quite different light. I have also a series of letters from members of your family that are consistent and I have your own letter today which is more encouraging.

Index offences

[5] On 7 January 2012, the date of these two offences, you were confined to your home serving a sentence of home detention imposed in November 2011, in place of
18 months imprisonment imposed for assault with intent to injure, two common assaults and an escape from custody.

[6] You were then confined to your home by yourself but on 7 January a woman friend of yours visited you and you drank together. You were joined by your two nieces and a young friend of S. Your own friend left and your nieces and their friend stayed the night.

[7] At 3 am the police were called to an address close to yours, after K complained you had assaulted her. S also complained but the police were unable to act on her complaint until after a video interview on 2 February 2012.

[8] Acting immediately on K's complaint, the police that night went to your home and at 3.45 am found you drunk and semi conscious. On the kitchen bench they found a capsule of cannabis oil, a spotting knife, cardboard tubes and a plastic drink bottle cut in half, all consistent with the smoking of cannabis. You were abusive and refused to answer any questions.

[9] S, aged 12, whom you assaulted first, said that when you and she were in the lounge alone together, and you were very intoxicated, you wanted to have sex with…

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 MH

Details

AGLC: R v MH [2013] NZHC 709
Case: [2013] NZHC 709
Decision Date: 9 April 2013

CaseChat Overview and Summary

MH appeared before the High Court of New Zealand for sentencing on two charges of indecent assault and injuring another individual with reckless disregard for the safety of others. The defendant, while serving a sentence of home detention, committed these crimes on 7 January 2012. The court had to determine whether MH should receive a preventive detention sentence or a finite sentence, considering his history of violent offenses and the gravity of the current crimes.

The court took into account MH's extensive criminal history, consisting of 22 convictions for violent offenses over seven years, as well as his conduct while in custody and his response to any programs offered. The psychiatrist and psychologist reports indicated that MH was at high risk of reoffending, both violently and sexually, and that he had not responded positively to individual counseling in the past. Despite this, the court decided not to impose preventive detention. The court considered several factors, including MH's age, his lack of lengthy prior terms of imprisonment, and the possibility of imposing a heightened finite sentence, a minimum term, and an extended supervision order on his release.

The court imposed a cumulative sentence of six years imprisonment, with a minimum term of four years. The court emphasized the importance of MH participating in group therapy while in prison and modifying the factors contributing to his offending, such as his alcohol use and anger. The court warned that if MH were to offend in a similar manner again, he could expect a sentence of preventive detention.

Orders