R v Mould - [2016] NZHC 154

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-009-009740 [2016] NZHC 154

THE QUEEN

v

ISAAC JASON MOULD TROY MATUA JAMES MCIVER

Hearing: 12 February 2016

Appearances:

D L Orchard for Crown
A S Greig for Defendant Mould
S Hembrow for Defendant McIver

Sentencing:

12 February 2016

SENTENCING REMARKS OF GENDALL J

Introduction

[1] Isaac Mould and Troy McIver, you appear today for sentence having been found guilty on 25 November 2015 by a jury of one count each of sexual violation by rape. Each charge carries a maximum penalty of 20 years’ imprisonment.

[2] You may be seated until I ask you to stand.

R v MOULD [2016] NZHC 154 [12 February 2016]

Facts

[3] I set out briefly the facts. On 23 May 2014 the victim, a girl aged 16 and still at school at the time, was at her home in Woodend. You, Mr Mould, were organising a group of friends to go to Woodend Beach for a bonfire and in the early evening you arranged for the victim to be contacted and invited to the bonfire.

[4] Thereafter, the victim was picked up in a vehicle by you, Mr Mould, and your group of friends including […], who had been a close friend of the victim for some time.

[5] Your group then travelled to a liquor store in Woodend and purchased alcohol. Mr Mould, you bought for […], and the victim, a box of RTD drinks and you bought yourself other alcohol.

[6] You then travelled to Woodend Beach. Once on the beach you walked a short distance from the entrance, and assembled and lit a driftwood bonfire. Alcohol brought to the beach was consumed and others arrived. It seems that in addition to the seven or so young men who were at the bonfire that night, the victim was the only female there, apart from one other young woman who had arrived later and was there for a time with her boyfriend.

[7] As the night progressed and considerable alcohol was consumed the victim says she was subjected to unwanted kissing and cuddling by a number of men present. You, Mr McIver, and another friend then stood her up and walked her towards the tussock covered sand dunes. Mr Mould, you and a few other friends followed behind a little time later.

[8] The victim asked where you were going and said she wanted to go back to the bonfire but she says her pleas were ignored. Once in the privacy of the sand dunes you, Mr McIver, it seems continued kissing the victim and a short while later she found herself on the ground surrounded by you, Mr Mould, and other young men.

[9] The evidence provided by the victim and evidence of bruising to parts of her body have suggested that she was held down on the ground whilst you,…

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 Mould

Details

AGLC: R v Mould [2016] NZHC 154
Case: [2016] NZHC 154
Decision Date: 12 February 2016

CaseChat Overview and Summary

Isaac Mould and Troy McIver were found guilty of sexual violation by rape, with each charge carrying a maximum penalty of 20 years’ imprisonment. The victim, a 16-year-old girl, was raped by Mould and McIver at a beach bonfire. Mould was found to have held the victim down and ripped off her shorts while McIver raped her after Mould had finished. The court was required to decide the appropriate sentence for each defendant, taking into account the purposes and principles of sentencing as outlined in the Sentencing Act.

The court determined that the appropriate starting point for the sentence was within the mid-range of band two, with a starting point of ten years' imprisonment. This decision was based on the moderate scale of offending, levels of violence and premeditation, and the vulnerability of the victim. The court also considered personal mitigating factors, such as the defendants' young ages and low to moderate risk of reoffending. Mould was sentenced to nine years and six months' imprisonment, while McIver was sentenced to nine years' imprisonment. The court also issued a Three Strikes Warning to both defendants, advising them of the severe consequences if they were to commit another serious violence offence in the future.

The final orders of the court were that Mould be sentenced to nine years and six months' imprisonment, and McIver be sentenced to nine years' imprisonment, with no minimum period of imprisonment imposed. Both defendants were also issued with a Three Strikes Warning.

Orders