R v Robertson - [2022] NZHC 3047

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IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2021-042-001679

[2022] NZHC 3047

THE KING

v

TANDY GABRIEL BRYANT ROBERTSON

Hearing: 17 November 2022

Appearances:

J M Webber for Crown

A J D Bamford for Defendant

Judgment:

17 November 2022

SENTENCING OF GRICE J

[1]Mr Robertson, you appear for sentencing on the following charges:1

1 Mr Robertson was convicted on 4 October 2022 in the Nelson High Court.

R v ROBERTSON [2022] NZHC 3047 [17 November 2022]

(a)three charges of doing an indecent act on a young person aged under 16;2

(b)sexual connection with a young person under 16;3

(c)failing to assist a person exercising a search power;4 and

(d)breaching an extended supervision order.5

The offending

[2] I base the summary on an amended summary of facts provided by the Crown. No issue has been taken with those on your behalf.

[3] On 22 May 2021, the victim, who was then 15 years of age, hitchhiked to Nelson, where she met with some older friends at a park in the evening. She went with those associates to the defendant’s accommodation where she and the defendant, Mr Robertson, were introduced.

[4] Mr Robertson told the victim that he really liked her, and there was a conversation about their ages. Mr Robertson said he was 27 at the time, when he was in fact 40 years of age, and the victim told him that she was 15.

[5] Mr Robertson started to kiss and touch the victim’s neck and touch her leg. He then pulled his penis out and began masturbating in front of her. The defendant then grabbed the back of the victim’s head and guided her mouth down onto his penis, where she proceeded to perform oral sex on him.

[6] Someone entered the room, causing Mr Robertson to push the victim away and put his penis back into his pants. The third person asked the victim to leave the premises, and she left and began walking towards town. The defendant followed her

2      Crimes Act 1961, s 134(3) — maximum penalty seven years’ imprisonment.
3      Section 134(1) — maximum penalty 10 years’ imprisonment.
4      Search and Surveillance Act 2012, s 178 — maximum penalty three months’ imprisonment.
5      Parole Act 2002, s 107T — maximum penalty two years’ imprisonment.

and asked if she would like to go to his friend’s house. She agreed and they caught a bus there.

[7] At the friend’s place, Mr Robertson took his penis out and began masturbating again. He asked the victim if he could ejaculate inside her, but she…

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 [2022] NZHC 3047
Case: [2022] NZHC 3047
Decision Date: 17 November 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Tandy Gabriel Bryant Robertson was sentenced on multiple charges, including indecent acts on a young person under 16, sexual connection with a young person under 16, failing to assist a person exercising a search power, and breaching an extended supervision order. The court considered the aggravating factors of age disparity, the victim's vulnerability, the persistence and degradation of the acts, and the harm caused to the victim. The starting point for sentencing was determined to be three years, with uplifts for previous convictions and breach of the supervision order, resulting in a starting point of three years and ten months. After considering the defendant's guilty plea and personal circumstances, the court arrived at a final sentence of two years and six months imprisonment.

The court acknowledged the defendant's troubled upbringing and mental health issues but found that these factors alone did not warrant a more lenient sentence. The court emphasized the importance of the defendant accepting responsibility for his actions and undergoing psychological assessment and treatment to aid in his rehabilitation. The defendant was also to be automatically registered as a child sex offender on the Child Sex Offender Register.

Orders