R v Popeea - [2015] NZHC 1882

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-004-11440 [2015] NZHC 1882

THE QUEEN

v

EDUARD-LAURENTIA POPEEA

Hearing: 11 August 2015

Appearances:

S McColgan for Crown
A Speed for Defendant

Sentence:

11 August 2015

SENTENCING REMARKS OF LANG J

R v POPEEA [2015] NZHC 1882 [11 August 2015]

[1] Mr Popeea, you appear for sentence today having pleaded guilty to a charge of indecent assault. That charge carries a maximum sentence of seven years imprisonment. You originally faced three much more serious charges. After the police consulted with your victim the Crown agreed to reduce the charge to the much less serious charge of indecent assault.

Background

[2] Your offending occurred when you and the complainant were both passengers on a cruise liner travelling between Brisbane and Auckland. The ship left Brisbane on 13 October 2014. Your offending occurred around midnight on the night of
16 October 2014. At that stage the ship was still in international waters.

[3] The offending occurred after you and an associate met the complainant and others in a nightclub on board the vessel at some stage after midnight. The group shared several drinks, and then you and your associate went back to your associate’s cabin accompanied by the complainant. There the three of you shared a bottle of wine. Once the wine was finished you and the complainant went back to your cabin, ostensibly so that you could obtain a phone number. Once you were back in your cabin the events occurred that gave rise to the charge of indecent assault. You removed at least some of your clothing. You then had the complainant touch your penis and you touched her genitalia. The complainant says that she was inebriated at the time and she was scared because of what was happening. She says that she was afraid to resist or say no. There was also a suggestion that she fell asleep at some stage during the incident, and that you touched her genitalia whilst she was asleep.

[4] Those matters are all recorded in the summary of facts, and you have pleaded guilty on the basis of that summary. I note that the pre-sentence report indicates you maintain that sexual contact was consensual. You also deny that the complainant fell asleep. I sentence you on the basis of the matters contained in the summary of facts.

[5] The offending had a significant impact for the complainant. She immediately made a complaint about what had happened. This meant that the New Zealand Police became involved when the ship berthed in Auckland. The complainant was then required to undergo embarrassing and stressful interviews with the police, and

also forensic examinations. It is also clear from the material on the Court file that your offending has had significant ongoing effects for the complainant. This is likely to take some considerable time to resolve.

Sentencing Act 2002

[6] In the present case I consider it is important to place the interests of the victim to the forefront.…

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 Popeea

Details

AGLC: R v Popeea [2015] NZHC 1882
Case: [2015] NZHC 1882
Decision Date: 11 August 2015

CaseChat Overview and Summary

The case of R v Popeea involved the defendant, Eduard-Laurentia Popeea, who was sentenced for a charge of indecent assault. Popeea had originally faced more serious charges but pleaded guilty to the reduced charge of indecent assault. The incident took place on a cruise ship in international waters, where Popeea engaged in non-consensual sexual activity with the complainant. The court had to consider the significant impact the offence had on the victim, the lack of a prior criminal record for the defendant, and the defendant's personal circumstances.

The primary legal issues were the determination of an appropriate starting point for sentencing and the selection of an appropriate form of punishment. The court considered the nature of the offence, the impact on the victim, and the defendant's personal circumstances in determining the sentence. The court also considered the defendant's lack of a prior criminal record, age, and the fact that he had been married for 37 years. The court acknowledged the financial and emotional costs the defendant faced due to the need to return to New Zealand for the trial.

The court decided on a sentence of reparation, ordering Popeea to pay AU$5,000 to the complainant, along with $3,000 towards the costs of the prosecution. The court also directed that Popeea surrender his passport to his counsel until the reparation and costs were paid. The court justified this decision based on the significant impact the offence had on the victim and the defendant's lack of connection to New Zealand, apart from the prosecution. The court also considered the defendant's personal circumstances and the impact the case had on him.

In summary, the court sentenced Popeea to pay reparation to the complainant and towards the costs of the prosecution, taking into account the nature of the offence, the impact on the victim, and the defendant's personal circumstances. The court also directed that Popeea surrender his passport until the reparation and costs were paid.

Orders