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R v Nielson

R v Nielson

Case [2019] NZHC 685 2 April 2019

Criminal Liability

Sentencing

Preventative Detention

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ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-092-004250

CRI 2017-092-005984

[2019] NZHC 685

THE QUEEN

v

JAMES ANTHONY NIELSON

Hearing: 2 April 2019

Appearances:

C Robertson for Crown G H Vear for Defendant

Judgment:

2 April 2019

Reissued:

6 June 2019

SENTENCING NOTES OF VAN BOHEMEN J

Solicitors:
Kayes Fletcher Walker, Manukau Public Defender Service, Auckland

R v NIELSON [2019] NZHC 685 [2 April 2019]

[1]Mr James Nielsen, you appear for sentence after pleading guilty to:

(a)Three charges, one being a representative charge, of sexual violation by unlawful sexual connection;1

(b)One representative charge of attempted rape;2

(c)Two representative charges of indecent assault on a child under 12 years of age;3

(d)One charge of knowingly making an objectionable publication;4

(e)One charge of knowingly distributing an objectionable publication;5 and

(f)One charge of knowingly possessing an objectionable publication.6

[2] I shall refer to the sexual violation, rape and indecent assault charges as the Crimes Act Charges. I shall call the other charges the publication charges in my sentencing notes.

[3] Each of the charges carries its own penalty, ranging from a maximum penalty of 10 years’ imprisonment for the rape and indecent assault charges and one of the publication charges, a maximum penalty of 14 years’ imprisonment for the other two publication charges, and a maximum penalty of 20 years’ imprisonment for the sexual violation charges. However, the Crown has asked me to consider imposing an indeterminate sentence of preventative detention because of the risk of sexual reoffending following your release from a finite sentence.

1      Crimes Act 1961, ss 128(1)(b) and 128B, maximum penalty 20 years’ imprisonment.
2      Crimes Act 1961, s 129(1), maximum penalty 10 years’ imprisonment.
3      Crimes Act 1961, s 132(3), maximum penalty 10 years’ imprisonment.
4      Films, Videos and Publications Classification Act 1993 (FVPCA), s 124(1), maximum penalty 14 years’ imprisonment.
5      Films, Videos and Publications Classification Act 1993, s 124(1), maximum penalty 14 years’ imprisonment.
6      Films, Videos and Publications Classification Act 1993, s 131A, maximum penalty 10 years’ imprisonment or $50,000 fine.

Facts

[4] Mr Nielson, you appear before the Court today for convictions arising out of the following circumstances. In 2014, you commenced a relationship with a woman I shall refer to as R. In May 2015, you began residing with R and her four children - two girls and two boys. You resided with R and her children until July 2016. During this period, you were often the only adult home alone with the children, while R was at work. During this period, you sexually abused C and K, the two girls, and accessed and shared objectionable material on line.

[5] The charges to which you have pleaded guilty occurred between 1 May 2015 and 7 July 2016. K was 7 or 8 years old at the time of the…

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 Nielson

Details

AGLC: R v Nielson [2019] NZHC 685
Case: [2019] NZHC 685
Decision Date: 2 April 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, James Anthony Nielsen was sentenced for multiple charges including sexual violation, attempted rape, indecent assault on a child under 12 years of age, and possession and distribution of objectionable publications. The court was required to determine an appropriate sentence, taking into consideration the nature and severity of the crimes, the risk of reoffending, and the mitigating factors. The main legal issues were whether a finite sentence or a sentence of preventative detention would be more appropriate given the risk of reoffending and the availability of an extended supervision order.

The court concluded that while Nielsen posed a high risk of reoffending, a lengthy prison sentence followed by the possibility of an extended supervision order would be adequate to protect the community. The court highlighted the principle that a finite sentence is preferable if it provides adequate protection for society. The availability of an extended supervision order, along with other factors such as Nielsen's age upon release and his willingness to engage in rehabilitation, tipped the scales in favour of a finite sentence. The court imposed a sentence of eight years and seven months' imprisonment with a minimum period of imprisonment of five years and eight months. Additionally, the court ordered the destruction of all electronic images and videos seized from Nielsen, the forfeiture of his electronic devices, and his registration on the Child Sex Offender Register.

Orders