R v Petera - [2013] NZHC 2170

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-029-000462 [2013] NZHC 2170

THE QUEEN

v

BRIAN PETERA

Hearing: 23 August 2013

Appearances:

M B Smith and C Anderson for the Crown
C S Cull for the Defendant

Judgment:

23 August 2013

SENTENCING NOTES OF WOOLFORD J

Solicitors: Crown Solicitor (Marsden Woods, Inskip & Smith), Whangarei.
C Cull, Barrister, Kaikohe.

R v PETERA [2013] NZHC 2170 [23 August 2013]

Introduction

[1] Mr Petera, you appear for sentence today on the following charges: (a) Attempted sexual violation by rape;
(b) Sexual violation by rape;

(c) Indecent assault;

(d)

A (representative) charge of sexual violation by unlawful sexual connection; and

(e)

A (representative) charge of indecent assault on a girl under 12.

[2]

The

maximum penalty for sexual violation is 20 years imprisonment. The

maximum sentence for attempted sexual violation and indecent assault on a girl under 12 is ten years imprisonment. The maximum penalty for indecent assault is seven years imprisonment.

Offending Against A

Count 1: Attempted sexual violation by rape

[3] Between 1 January 2004 and 1 January 2005, A was either 13 or 14 years old. On one occasion after midnight, you were quite intoxicated and asked A to drive you both home. As A was driving, you put the car into neutral on purpose twice.

[4] You climbed over towards A, who began to open the door in panic. Before she could get out, you had run around the front of the car and wrenched her by the leg so she was lying half in and half out of the car.

[5] You pulled off A’s shorts and underwear. She began to scream and shout for her mother and grabbed onto the steering wheel so you could not pull her completely out of the car. She pressed the horn as much as she could at the same time as she was kicking and writhing so that you could not control her.

[6] She kept fighting against you and sounding the horn until you backed away long enough for her to scramble over to the passenger seat. Once she was in the passenger seat you got into the driver’s seat and you both sat in silence for some time, with her still naked from the waist down. Then, you said “Let’s just do this.”

[7] A was in shock and could not get away. You climbed over and wrenched her groin area by the hips towards your penis. You began thrusting your penis at her vagina. She grabbed a netball jacket and put it over her face, sobbing so that she would not have to look at you. You continued to thrust, but when you failed to maintain an erection you eventually gave up.

[8] This incident caused some bleeding and severe bruising and pain to her back.

Count 2: Sexual violation by rape

[9] On another occasion between 1 January 2004 and 1 January 2005, A was standing in the lounge room in her nightie, alone at 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 Petera

Details

AGLC: R v Petera [2013] NZHC 2170
Case: [2013] NZHC 2170
Decision Date: 23 August 2013

CaseChat Overview and Summary

Mr Petera was sentenced by Woolford J in the High Court at Whangarei. Mr Petera was found guilty of sexual offending against three girls over an extended period of time. The court considered the aggravating and mitigating factors of his offending and determined the appropriate sentence. The court found that the offending was of high culpability due to the planning and premeditation, the vulnerability of the victims, the harm caused, the scale of the offending, and the breach of trust. The lead offence of the rape of A was placed in band two of R v AM, however, an uplift was applied to account for the attempted rape of A and the other serious sexual offending against B and C, resulting in a starting point of 15 years imprisonment. The court considered that there were no mitigating factors, and Mr Petera was not entitled to a guilty plea discount as he had not pleaded guilty. The court imposed a minimum term of imprisonment of seven and a half years, and sentenced Mr Petera to 15 years imprisonment, to be served concurrently. The court also issued a warning under s 86B of the Sentencing Act, given Mr Petera's conviction for sexual violation, he is now subject to the three strikes law.

Orders