ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-092-10635 [2015] NZHC 2999
THE QUEEN
v
R
Hearing:
27 November 2015
Appearances:
Z R Hamill for Crown A J Holland for Defendant
Date:
27 November 2015
SENTENCING REMARKS OF M PETERS J
Solicitors: Kayes Fletcher Walker, Manukau
Counsel: R S Reed, Auckland
A J Holland, Auckland
R v R [2015] NZHC 2999 [27 November 2015]
[1] Mr R, you appear for sentence today having been convicted at trial on one charge of indecent assault.1 The maximum penalty for the offending is seven years’ imprisonment.2
[2] I presided over your trial and I am familiar with the facts.
[3] The offending occurred in 1977 or 1978 when you were 24 years old. The complainant, “A”, was your younger half sister and was 16 years old at the time.
[4] A was staying with you and your wife. The incident to which the charge relates began with a “play fight” while you and A were alone. During the course of this play fight you pulled down A’s jeans and underwear and digitally penetrated her vagina. This continued until A said “no” and left the room. You denied the offending at trial and continue to do so today.
[5] In advance of sentencing you today I have received:
(a) the Provision of Advice to Courts report from the Department of
Corrections;
(b) counsel’s submissions; and
(c) many character references provided on your behalf. It is apparent from these that you have made a lengthy and significant contribution to the aviation community in particular as a flight instructor and that your students and colleagues have greatly appreciated and benefitted from your efforts.
[6] Although the references are recent, they do not, however, refer to your conviction and some read as if they are references for employment. Accordingly, I assume that you did not tell the referees why you were asking for a reference. They
would carry even more weight had you done so.
1 Crimes Act 1961, s 135 (historic text as between 1 January 1962 and 1 July 1999).
2 Crimes Act 1961, s 135(1)(a).
Victim impact statement
[7] I have read A’s victim impact statement. She is correct in saying that you breached her trust. A’s reluctance to trust anyone since – particularly around her children when they were young, and now her grandchildren – is a regrettable but all too common consequence of offending of this nature.
Approach to sentencing for historic offending
[8] Although sentences for offending of this nature have increased significantly since the 1970s, you have the benefit of the lesser penalty in force at the time.3
[9] The Court of Appeal explained the approach to sentencing for historic offending in R v Accused (CA463/97):4
A Judge…
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.
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AGLC
R v R [2015] NZHC 2999
Case
[2015] NZHC 2999
Decision Date
CaseChat Overview and Summary
The defendant in this case, Mr. R, was convicted of indecent assault against his half-sister, A, when she was 16 years old and he was 24. The incident took place in 1977 or 1978 and occurred during a play fight. Mr. R denied the charges, both at trial and during sentencing. The court had to determine the appropriate sentence for this historic offence, taking into account the principles of sentencing and the maximum penalty available at the time of the offence. The court also had to consider the aggravating and mitigating factors in this case and the impact of the offence on the victim.
In determining the starting point for sentencing, the court considered the purposes and principles of sentencing, including holding the defendant accountable, promoting a sense of responsibility, and denouncing and deterring this type of offending. The court also considered the gravity and seriousness of the offence and sought consistency with other cases involving similar offending. The court found that the starting point for this case should be 18 months' imprisonment, reflecting the sentencing levels that prevailed in the late 1970s. The court then considered the personal factors relating to the defendant, including his good character and the lapse of time since the offence occurred. The court reduced the starting point by six months to reflect these factors, resulting in a final sentence of 12 months' imprisonment. However, given that the sentence was less than two years, the court was required to impose the least restrictive outcome appropriate in the circumstances. The court determined that a sentence of home detention was appropriate and imposed a sentence of six months' home detention at the defendant's residence, with various conditions attached.
In summary, the court sentenced Mr. R to six months' home detention for his conviction of indecent assault against his half-sister in 1977 or 1978. The court took into account the principles of sentencing, the maximum penalty available at the time of the offence, and the aggravating and mitigating factors in this case. The court also considered the impact of the offence on the victim and imposed the least restrictive outcome appropriate in the circumstances.