R v Orchiston - [2020] NZHC 224

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY SS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-020-1297

[2020] NZHC 224

THE QUEEN

v

WARWICK ROWORTH ORCHISTON

Hearing: 20 February 2020

Counsel:

S B Manning for Crown M M Dixon for Defendant

Date:

20 February 2020

SENTENCING OF CLARK J

Introduction

[1] Mr Orchiston, — you can stay seated — you appear for sentence this morning having pleaded guilty to two charges of sexual violation by unlawful sexual connection1 and 21 charges of an indecent act on a child under 12.2

[2] A charge of sexual violation carries a maximum of 20 years’ imprisonment. A charge of an indecent act carries a maximum sentence of 10 years’ imprisonment.

1 Crimes Act 1961, s 128(1)(b) and s 128B.
2 Section 132(3).

R v ORCHISTON [2020] NZHC 224 [20 February 2020]

[3] The crown seeks a sentence of preventive detention. That is the main issue for me today — whether you should receive a finite sentence or a sentence of preventive detention.

Three strikes warning

[4] Before dealing with sentencing, there is a preliminary matter. The offences you have committed fall within the definition of a “serious violent offence” in the Sentencing Act 2002.3 The Sentencing Act requires the Court to warn you of the consequence of committing another serious violent offence. Normally the warning is given when the offender is convicted.4 As that did not happen I give the warning today.

[5] You have not previously been given a warning so this is your first. It is a stage one warning:

(a)If you are convicted of any serious violent offence, except murder, committed after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.

(b)If you are convicted of murder committed after this warning, you will be sentenced to life imprisonment, and serve that sentence without the possibility of parole unless it would be manifestly unjust to do so. In that event the Judge must sentence you to a minimum term of imprisonment.

[6] This warning will be given to you in writing and your lawyer can explain it to you.

[7]I now move to your offending.

3 Sentencing Act 2002, s 86A.
4 Section 86B.

Your offending

[8] The offending took place during 2018 — possibly into 2019. There are four victims. At the time of the offending one was aged five, one was aged nine, and one was between nine and 10 and the fourth was 11 to 12.

[9] You befriended them, and very quickly gained the trust of their parents. Within a short space of time you were treating the children to trips to McDonalds, giving them money, and buying them clothing and other treats.

[10] You gained the trust of the families to the extent that your offers to take 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 Orchiston

Details

AGLC: R v Orchiston [2020] NZHC 224
Case: [2020] NZHC 224
Decision Date: 20 February 2020

CaseChat Overview and Summary

The case of R v Orchiston involved the sentencing of Mr Warwick Roworth Orchiston who pleaded guilty to two charges of sexual violation by unlawful sexual connection and 21 charges of an indecent act on a child under 12. The Crown sought a sentence of preventive detention, which was the main issue for the Court to decide. The Court considered the aggravating factors of planning and premeditation, vulnerability of the victims, breach of trust, and the scale of offending. The starting point for the sentence was determined to be seven and a half years’ imprisonment. Adjustments to the starting point included a six-month uplift for previous convictions and a 25 per cent reduction for an early guilty plea. The Court then considered whether to impose a finite sentence or a sentence of preventive detention. The Court found that Mr Orchiston posed a significant and ongoing risk to the safety of the community and imposed a sentence of preventive detention with a minimum period of imprisonment of five years on the charge of sexual violation by unlawful sexual connection and six years’ imprisonment to be served concurrently with the sentence of preventive detention on the second charge of sexual violation by unlawful sexual connection and the 21 charges of indecent acts.

Mr Orchiston was also informed that he was a registrable offender under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016. The Court considered various reports and expert opinions in determining the appropriate sentence, taking into account factors such as the pattern of serious offending, the seriousness of the harm caused by the offending, the likelihood of future offending, the absence of efforts to address the cause of the offending, and the principle that a lengthy determinate sentence is preferable if it provides adequate protection for society. The Court concluded that a sentence of preventive detention was necessary to protect the community from the risk of further sexual offending by Mr Orchiston.

Orders