R v Mitchell - [2021] NZHC 2175

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2019-009-4452

[2021] NZHC 2175

THE QUEEN

v

HARRY JAMES MITCHELL

Hearing: 17 August 2021

Appearances:

H V Bennett for Crown

J J McCall for Defendant

Judgment:

17 August 2021

SENTENCING REMARKS OF MANDER J

[1] Mr Mitchell, you are for sentence this morning on five charges of making an objectionable publication,1 two charges of distributing an objectionable publication,2 a representative charge of possession of an objectionable publication,3 two charges of burglary,4 and five charges of committing an indecent act on a child under the age of 12 years.5 You were found guilty of those charges and your sentencing was transferred to this Court for the purpose of considering the imposition of a sentence of preventive detention.6

1      Films, Videos and Publications Classification Act 1993, ss 123(1)(a) and 124(2)(a): maximum penalty of 14 years’ imprisonment.
2      Films, Videos and Publications Classification Act 1993, ss 123(1)(d) and 124(2)(a): maximum penalty of 14 years’ imprisonment.
3      Films, Videos and Publications Classification Act 1993, s 131A(1): maximum penalty of 10 years’ imprisonment or a fine of $50,000.
4      Crimes Act 1961, s 231(1)(a): maximum penalty of 10 years’ imprisonment.
5      Crimes Act 1961, s 132(3): maximum penalty of 10 years’ imprisonment.
6      Sentencing Act 2002, s 90.

R v MITCHELL [2021] NZHC 2175 [17 August 2021]

The offending

[2]Your offending involved two young victims.

The first victim

[3] The first two charges of making an objectionable publication concern offending that occurred between October 2014 and February 2015 at Kaiapoi. The mother of a six-year-old boy advertised for a boarder to occupy a caravan situated on her property. You responded and began living in the caravan. You were also permitted access to the house to use the bathroom and kitchen. During this period you befriended the family and played with the young boy.

[4] There was evidence at your trial that while playing with the child on the trampoline you touched him, as it was referred to in the evidence, “in the middle of his bottom cheeks”, and on occasions your hand would slip onto his penis. On one occasion after you had moved into the house, because of an issue relating to the use of the caravan, you deliberately exposed your penis to the young boy when he came into the room you were occupying at the time.

Making an objectionable publication (x 2)

[5] Two of the charges of making an objectionable publication relate to videos that you covertly took of the child while he was taking a bath. You entered the house, approached the bathroom and filmed through a small gap in the doorway. The video zoomed in on the victim’s genital area. There was a third video made when the child was in the bath but fully clothed. You filmed the child while naked from the waist down, exposing your penis to him. This video, however, was not classified as objectionable and there…

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 Mitchell

Details

AGLC: R v Mitchell [2021] NZHC 2175
Case: [2021] NZHC 2175
Decision Date: 17 August 2021

CaseChat Overview and Summary

The defendant, Harry James Mitchell, was found guilty of multiple charges of making an objectionable publication, distributing an objectionable publication, possession of an objectionable publication, burglary, and committing an indecent act on a child under the age of 12 years. The sentencing hearing was presided over by MANDER J. The court was required to determine the appropriate sentence, including whether preventive detention should be imposed. The key issue was whether a finite sentence coupled with an Extended Supervision Order would adequately address the risk posed by the defendant, or if preventive detention was necessary.

MANDER J considered the defendant's extensive history of sexual offending against children, his denial of the current offending, and his poor engagement in past treatment programs. The court concluded that the defendant's risk of reoffending was high and that a finite sentence alone would not adequately protect the community. However, the court also noted that the defendant had not engaged in the type of intensive treatment programs recommended by health assessors, and there was a possibility that such programs could reduce his risk of reoffending. Given the statutory principle that a lengthy determinate sentence is preferable if it provides adequate protection for society, the court decided to impose a finite sentence of nine years' imprisonment with a six-year non-parole period, coupled with an Extended Supervision Order upon release.

Final orders include a nine-year sentence for each charge of making an objectionable publication with a six-year minimum period of imprisonment, concurrent terms of five years' imprisonment for distributing an objectionable publication, three years' imprisonment for possession of an objectionable publication, four years' imprisonment for committing an indecent act on a child under 12, and three years' imprisonment for burglary, all to be served concurrently. The defendant is also subject to a strike warning, registration on the Child Sex Offender Register, and an order for the destruction of electronic equipment capable of storing images or accessing the internet.

Orders