R v Mortensen - [2012] NZHC 2478

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT
1985.

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2012-042-154 [2012] NZHC 2478

QUEEN

v

WILLIAM HERBERT MORTENSEN

Hearing: 25 September 2012

Counsel: M A O'Donoghue with J Webber for Crown
S J Zindel for Prisoner

Sentence: 25 September 2012

SENTENCING NOTES OF THE HON JUSTICE KÓS

[1] Mr Mortensen, you have pleaded guilty to a number of charges. Two charges of sexual violation by unlawful sexual connection;1 one indecent act on a male aged
12 to 16;2 four charges of indecent acts on girls aged under 12;3 six charges of

knowingly making an objectionable publication;4 12 charges of knowingly supplying

1      Crimes Act 1961, ss 128 and s 12B.
2      Crimes Act 1961, s 134(3).
3      Crimes Act 1961, s 132(3).
4      Films Videos & Publications Classifications Act 1993, s 124(1).

R v MORTENSEN HC NEL CRI 2012-042-154 [25 September 2012]

objectionable publications;5 three representative charges of possessing objectionable material;6 three charges of indecency with an animal7 and three charges of theft.8
You appear for sentence today on those charges. The District Court declined jurisdiction to sentence you because only the High Court has the ability to impose a sentence of preventive detention.

[2] I am required by the Sentencing Act 2002 to keep in mind a number of purposes and principles in sentencing. In terms of s 7, issues of deterrence, denunciation and the need to hold the offender accountable for the harm done to your victims are prominent considerations in a case of this type. Another essential consideration is the need to assist you in your respective rehabilitation and reintegration into the community.

[3] In terms of s 8 principles, I must take into account the gravity of your offending, including your degree of culpability. I must have regard to the seriousness of the types of offences that you have committed by comparison to other types of offending, as indicated by the maximum penalty prescribed. I must also consider the general desirability of consistency with appropriate sentences available. I am also to take into account your personal circumstances. I need to impose by law the least restrictive outcome that is appropriate to your circumstances.

[4] The key issue in sentencing today is whether I should impose an indeterminate sentence of preventive detention, or whether a lengthy finite sentence (which may then be subject to a post-release extended supervision order) will be sufficient to reflect the sentencing principles I have just referred to, and to protect our community.

[5] After consideration of the submissions both written and the oral submissions

I have heard this morning, Mr Mortensen, I have reached the conclusion that a

5      Films Videos & Publications Classifications Act 1993, s 124(1).
6      Films Videos & Publications Classifications Act 1993, s 124(1).
7      Crimes Act 1961, s 144.
8      Crimes Act 1961, ss 219 & 223(d).

sentence of preventive detention is the only one properly available to this…

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 Mortensen

Details

AGLC: R v Mortensen [2012] NZHC 2478
Case: [2012] NZHC 2478
Decision Date: 25 September 2012

CaseChat Overview and Summary

The case of R v Mortensen was heard in the High Court of New Zealand, Nelson Registry. William Herbert Mortensen pleaded guilty to numerous charges, including sexual violation by unlawful sexual connection, indecent acts on minors, possession and supply of objectionable publications, indecency with an animal, and theft. The court was required to decide whether to impose a sentence of preventive detention or a lengthy finite sentence, considering the severity of the offenses, the risk of reoffending, and the potential for rehabilitation. After reviewing the submissions, the court concluded that preventive detention was the only appropriate sentence. The court considered the impact of Mortensen's offenses on the victims and the community, his history of similar offenses, and the lack of success in previous treatment programs. The court found that Mortensen met the criteria for preventive detention and imposed a sentence of preventive detention with a minimum term of imprisonment of five and a half years. The remaining charges were sentenced concurrently. The court also issued a three strikes warning to Mortensen, stating that any future serious violent or sexual offenses would result in a sentence without parole or early release.

Orders