R v Owen - [2012] NZHC 499

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 CHRISTCHURCH REGISTRY

CRI-2011-009-008754 [2012] NZHC 499

REGINA

v

KURT OWEN

Appearances: MAV Raj and T J Mackenzie for Crown
JHM Eaton for Prisoner

Judgment: 21 March 2012

SENTENCE OF HON JUSTICE FRENCH

[1] Mr Owen, following pleas of guilty, you appear for sentence on two counts: (i) assault with intent to commit sexual violation;
(ii) threatening to kill.

The facts of the offending

[2] On 27 July last year you were at a bar with the victim and some other people. You had met the victim once before.

R V OWEN HC CHCH CRI-2011-009-008754 [21 March 2012]

[3] After approximately 1 a.m., the victim called a taxi. It was agreed that you would share the taxi with her and her female friend so as to defray costs.

[4] On the way to their destination, the two women repeatedly asked you where you lived, so they could drop you off. You would not provide an address, and suggested you could come and stay on their couch. The victim vetoed that suggestion, having already told you three times, back at the bar, that she was not going to your place, and you were not coming to stay with her.

[5] When the taxi arrived at the women’s address, you again asked to sleep on the couch, and they again refused. The victim even gave the taxi driver $20 and asked him to take you wherever you wanted to go.

[6] About ten minutes later, however, you returned to the women’s address, banged on the door and asked to stay the night. They reluctantly let you in, and said you could stay in the lounge on a fold-out couch.

[7] You were making a lot of noise, however, so the friend asked the victim to go and tell you to keep quiet. The victim duly went into the lounge and told you go to sleep. However, you stood up and said “You're sleeping with me tonight”. She rejected that overture, but despite this you persisted, repeatedly saying “You're sleeping in my bed”.

[8] Then you turned off the light and pushed her forcibly backwards, and she fell onto the bed. You then knelt over the top of her. She said to you in no uncertain terms that you were to get off, and this was not happening. However, you lowered yourself down on top of her so she was pinned on the bed and could not move. You tried to open her shirt with one hand, so she crossed her arms across her chest to prevent that happening. You then used your forearm to pin her arms to her chest, and tried to kiss her. The victim turned her head to one side, and again told you in no uncertain terms to get off. You attempted then to pull her tights down and she said “Get off me, 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 Owen

Details

AGLC: R v Owen [2012] NZHC 499
Case: [2012] NZHC 499
Decision Date: 21 March 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, Justice French presided over the sentencing of Kurt Owen on two charges: assault with intent to commit sexual violation and threatening to kill. The court heard that on 27 July, Owen met the victim at a bar and agreed to share a taxi with her and her friend. Despite repeated refusals, Owen insisted on staying at the victim's residence, eventually assaulting her when she refused his advances. The victim sustained physical injuries and suffered from post-traumatic stress disorder.

The court had to determine whether a fixed term sentence or preventive detention was appropriate. The starting point for the sentence was six years' imprisonment, considering the aggravating factors of the assault and the abuse of trust. However, personal factors such as Owen's previous convictions and the fact that the offence occurred while on parole led to an 18-month uplift. Mitigating factors, including Owen's early guilty plea, remorse, and efforts towards rehabilitation, resulted in a 25% reduction. Thus, the court sentenced Owen to five years and three months in prison, with a minimum non-parole period of two years and seven months. The court also issued a first strike warning under the three strikes law.

Justice French concluded that preventive detention was not justified, primarily due to Owen's need for treatment, which the health assessors deemed likely to be successful. However, the court warned Owen that a repeat offence would result in preventive detention. The court also ordered the suppression of the victim's name to protect her identity as a victim of a sexual offence.

Orders