R v P - [2017] NZHC 627

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-090-005086 [2017] NZHC 627

THE QUEEN

v

P

Hearing: 4 April 2017

Counsel:

J Murdoch for Crown
SE Giles for Defendant

Judgment:

4 April 2017

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:
Meredith Connell, Auckland.
Public Defence Service, Manukau.

R v P [2017] NZHC 627 [4 April 2017]

Introduction

[1] Mr P, you are to be sentenced for sexual offending against five young victims. You pleaded guilty in July last year to seven charges:

(a) Five representative charges of sexual violation by unlawful sexual connection.1

(b) One charge of indecency with a boy under 12 years of age.2

(c) And one charge of sexual conduct with a child under 12 years.3

More about the delay later.

Factual background

[2] Your offending occurred between 1993 and 2007; or more particularly, between 1993 and 1994, and then between 2002 and 2007. You were living at your mother’s home. So too a number of young relatives: they were being cared for by your mother.

Offending against M

[3] You first offended against your female cousin, M. She recalls waking one morning in 1993 to find you performing oral sex on her. When she asked you to stop, you said, “no one will believe you”. She was then thirteen. On another occasion, also in 1993, M woke to find you performing oral sex on her. This time, however, she noticed your five-year-old son was sitting on the end of the bed watching.

Offending against G

[4] You next offended against your young male cousin, G. In 1999, G and his family moved in with you and your mother. In 2001 or thereabouts, and when G was

1      Crimes Act 1961, s 128(1)(b). The maximum penalty is 20 years’ imprisonment.
2      Crimes Act 1961, s 140. The maximum penalty is 10 years’ imprisonment (now repealed).
3      Crimes Act 1961, s 132(3). The maximum penalty is 10 years’ imprisonment.

six, his parents moved away leaving him in your mother’s care. On a number of occasions, you performed oral sex on G. And on at least five occasions, you forced G to perform oral sex on you. During one encounter, you grabbed G’s penis with your hands and rubbed it. You made him do the same to you. The offending ended in 2004 when G was placed with new caregivers.

[5] These facts form the basis of two representative charges of sexual violation by unlawful sexual connection and one charge of indecency with a boy under 12.

Offending against J

[6] You also offended against your niece, J. She lived close by. The offending occurred between 1 January 2003 and 31 December 2006.

[7] When J was 10 or 11, she awoke to find you lying next to her. You had been drinking at her house. J’s pyjamas had been removed. She felt your fingers inside her genitalia. After realising what was happening, J left the bed and ran to her mother’s room.

[8] When J was 12 or…

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 P

Details

AGLC: R v P [2017] NZHC 627
Case: [2017] NZHC 627
Decision Date: 4 April 2017

CaseChat Overview and Summary

The defendant in the case of R v P was sentenced for multiple sexual offences against five young victims. The defendant pleaded guilty to seven charges: five of sexual violation by unlawful sexual connection, one of indecency with a boy under 12 years of age, and one of sexual conduct with a child under 12 years. The court had to decide on the appropriate starting point for sentencing, taking into account the seriousness of the offending, and the mitigating factors. The court also had to determine the appropriate minimum period of imprisonment and whether the defendant qualified for a discount for entering guilty pleas.

The court considered the seriousness of the defendant's offending and the appropriate starting point for sentencing. The court found that the defendant's offending against one victim, G, required a different analysis, at least initially, than the rest of the offending. The court identified several aggravating factors, including the planning and premeditation involved, the vulnerability of the victim, the harm caused, the scale of the offending, and the breach of trust. The court found that the offending against G fell within rape band two of R v AM, which is appropriate for cases involving a vulnerable victim and two or three of the identified aggravating factors to a moderate degree. The court found that the remaining offending fell within band three of R v AM and considered the appropriate starting point for the remaining offending to be 13–14 years’ imprisonment. The court concluded that the overall starting point was at the top of the range of 13 to 15 years’ imprisonment.

The court considered the mitigating features, which were limited to the defendant's guilty pleas. The court found that the defendant's lack of cooperation with Court-appointed experts, absence of insight, and refusal to accept any wrongdoing necessarily affected the discount for entering guilty pleas. The court found that a discount of not more than 10 percent was appropriate. The court also decided to impose a minimum period of imprisonment because parole eligibility after one-third of the sentence would not be sufficient to meet the purposes of punishment, deterrence, denunciation, and community protection. The court considered a minimum period of 60 percent necessary, given the seriousness of the offending, the breach of trust, the harm caused, and the defendant's risk of re-offending.

The court sentenced the defendant to 13 and a half-years’ imprisonment, with a minimum period of 60 percent of that term. The court also informed the defendant of his obligations under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016, including his ongoing reporting obligations and the penalties for failing to comply with the Act. The court emphasized that release after eight years and one month was far from guaranteed and that the decision was for the Parole Board, not the court.

Orders