Charges:
Plea:

Murder; Sexual violation by rape

Not Guilty

Counsel:

B H Dickey, M R Walker and M J Hammer for Crown
C B Wilkinson-Smith and K P Brosnahan for Prisoner

Sentenced:

6 August 2015

SENTENCING NOTES OF BREWER J

Solicitors/Counsel: Meredith Connell (Auckland) for Crown
Chris Wilkinson-Smith and Kevin Brosnahan (Auckland) for Prisoner

R v ROBERTSON [2015] NZHC 1849 [6 August 2015]

Introduction

[1] Mr Robertson, I have to sentence you on your convictions for raping and murdering Mrs Gotingco. The maximum penalty for murder is life imprisonment. The maximum finite sentence for rape is 20 years’ imprisonment, and in your case I have to consider preventive detention.

[2] It is important to realise that the sentences I will impose on you are not intended to somehow compensate Mrs Gotingco’s family for what you did to her. Nothing that I can do could achieve that. You have heard this morning from members of Mrs Gotingco’s family through their victim impact statements. Only time and their love for each other will achieve any healing for the family.

[3] My task in sentencing you is to respond as the law requires and on behalf of the community to what the jury found you to have done. As a Judge, I will do that clinically and without emotion.

Background facts

[4] The facts of your case were established in evidence at the trial. I will refer to them only briefly.

[5] On the evening of 24 May 2014, Mrs Gotingco was walking home, having taken a bus from work. You were driving in the area at that time. The Crown’s case was that you were looking for a female to abduct, rape and murder. You came across Mrs Gotingco, a small, slightly built woman who was crossing the road. You took advantage of the opportunity and deliberately ran her down.

[6] Mr Wilkinson-Smith has just made it clear that you do not accept that there was anything premeditated about what happened. The running down was an accident. Mr Wilkinson-Smith, both today and in his written submissions, has repeated the points which go to accident and which he put to the jury. By themselves they are persuasive. But, having heard all of the evidence, I accept the Crown’s theory on these points. Without going into detail, my reason for doing so is that the

way you acted after running down Mrs Gotingco is entirely consistent with the

Crown’s theory and the reliable evidence, and inconsistent with mere accident.

[7] Mrs Gotingco was badly hurt, to the extent that, without treatment, her injuries were barely survivable. You did not seek treatment. You put her in your car and drove to your garage. You raped her in the back of your car, despite her injuries. You strangled her with your hand, I infer to subdue her. After you had raped Mrs Gotingco you killed her with…

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 Robertson

Details

AGLC: R v Robertson [2015] NZHC 1849
Case: [2015] NZHC 1849
Decision Date: 6 August 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the defendant, Tony Douglas Robertson, faced sentencing on charges of murdering and raping Mrs. Gotingco. Robertson had been found guilty by a jury and had pleaded not guilty. The Crown argued for a minimum period of imprisonment of 21 to 23 years for the murder, while the defence sought a minimum period of 18 years. Additionally, the Crown sought preventive detention for the rape charge, which the defence contested. The judge had to determine the appropriate sentences considering the brutal nature of the crimes, Robertson's history of violent offending, and his mental health issues.

The central legal issues in this case were the determination of the minimum period of imprisonment for the murder charge and whether preventive detention was appropriate for the rape charge. The judge needed to balance the heinous nature of the crimes, the risk Robertson posed to the community, and his personal circumstances, including his history of violence and mental health issues.

The judge rejected the defence's argument that the running down of Mrs. Gotingco was accidental, accepting the Crown's theory that the murder and rape were premeditated. The judge imposed a minimum period of imprisonment of 24 years for the murder, reflecting the brutality and callousness of the crime, and the fact that it was committed in the course of another serious offence. For the rape charge, the judge imposed preventive detention with a minimum period of imprisonment of 10 years, finding that Robertson would likely commit another qualifying offence if released.

In summary, Robertson was sentenced to life imprisonment with a minimum period of 24 years for the murder charge and preventive detention with a minimum period of 10 years for the rape charge. This decision was based on the severity of the crimes, Robertson's history of violent offending, and the risk he posed to the community.

Orders