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R v Rutene

R v Rutene

Case [2012] NZHC 3408 14 December 2012

Breach of Trust

Aggravated & Exemplary Damages

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ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF VICTIMS/CONNECTED PERSONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2011-016-002914 [2012] NZHC 3408

THE QUEEN

v

WEHERUA KARLOS RUTENE

Hearing: 14 December 2012

Appearances: C R Walker for the Crown
D Sharp for the Prisoner

Judgment: 14 December 2012

SENTENCING NOTES OF WOOLFORD J

Solicitors/Counsel:

Crown Solicitors (S Manning), Gisborne
Burnard Bull & Co (D Sharp), Gisborne

R V RUTENE HC GIS CRI-2011-016-002914 [14 December 2012]

[1] Mr Rutene on 4 October 2012, you were convicted of the following charges,

following a jury trial, here in the Gisborne High Court:

Offence
Section / Act

Maximum penalty

Doing an indecent act to a young person

s 134(3) Crimes Act 1961

7 years imprisonment

Assault (representative)1
s 196 Crimes Act 1961

1 years imprisonment

Assault2
s 196 Crimes Act 1961

1 years imprisonment

Assault3
s 196 Crimes Act 1961

1 years imprisonment

Facts

[2] I presided over your trial and have a good appreciation of the facts behind each charge. The offending concerned two different victims, TD and LR. Both of them were placed with you and your wife by family or CYFS and you acted as their caregivers for periods of time.

[3] TD was 12 when he first came to live with you. You offended against him both violently and sexually. In respect of the sexual offending, he alleges you would regularly come into his room at night and fondle his genitals under his clothing for a period of time. This apparently occurred on numerous occasions over the roughly three years that TD was in your custody. What was quite humiliating for him was to find that you had in fact taken photographs of that offending. There was also concerted physical violence towards TD involving sustained slapping and punching about the body and head on numerous occasions. The effects of these
actions are evident from TD’s victim impact statement.

1 Count 5.
2 Count 7.
3 Count 8.

[4] The second victim, LR, was the subject of similar forms of assault during his time with you. It has obviously had an effect on him as well.

Victim Impact Statements

[5] TD is now 17 years old. You inflicted both physical and sexual abuse on him. In regard to the physical injuries, he recalls having had bruising to his face and black eyes, being left with a bleeding nose and having swollen and bleeding lips following the assaults.

[6] The sexual offending you committed has greatly affected his moods and lead to some suicidal thoughts. He felt powerless and frozen during your offending against him and hates the fact that he could do nothing to control his situation. TD suffered the effects of your offending for some time after it occurred and, even after he was well away from you, would sometimes wake up with the sensation that you were offending against…

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 Rutene

Details

AGLC: R v Rutene [2012] NZHC 3408
Case: [2012] NZHC 3408
Decision Date: 14 December 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Gisborne Registry, the case of The Queen v Weherua Karlos Rutene was heard on 14 December 2012, where Rutene was convicted of various charges, including doing an indecent act to a young person and assault, following a jury trial. The legal issues before the court involved determining the appropriate starting point for sentencing, adjusting that starting point based on personal circumstances, and deciding on the cumulative sentence for the multiple charges. The court needed to balance the purposes and principles of sentencing, including accountability, denunciation, and rehabilitation, with the gravity of the offending and its impact on the victims.

The court set a starting point of three years imprisonment for the indecent act charge, considering the breach of trust, abuse of authority, and repeated nature of the offending. For the assault charges, a cumulative sentence of six months imprisonment was deemed appropriate, given the seriousness of the assault and its relation to different victims. The court rejected the argument for a discount based on good character, noting that Rutene had used his position of trust to facilitate the offending over a period of time. Health issues were also considered irrelevant for adjusting the sentence. Consequently, Rutene was sentenced to three years imprisonment for the indecent act, with concurrent six-month sentences for the assaults, resulting in a total effective sentence of three and a half years imprisonment.

The final orders of the court were that Rutene was sentenced to three years imprisonment for the indecent act on a young person, with concurrent six-month sentences for each of the assault charges, resulting in a total effective sentence of three and a half years imprisonment.

Orders