R v Rutherford - [2019] NZHC 1628

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-096-482

[2019] NZHC 1628

THE QUEEN

v

GRAHAME JOHN RUTHERFORD

Hearing: 12 July 2019

Appearances:

P K Feltham for Crown L A Scott for Defendant

Date:

12 July 2019

SENTENCING OF COOKE J

[1] The defendant, Mr Rutherford, appears for sentence having pleaded guilty to one charge of doing an indecent act on a child.1

Summary of offending

[2] At 10.20 am on Thursday 7 February 2019 Mr Rutherford was in the toy aisle of The Warehouse retail outlet in Upper Hutt. The victim was looking at toys in the aisle, and her mother was in another aisle out of sight. Mr Rutherford approached the victim and spoke to her. The victim told him it was her 10th birthday and she was off school to buy presents with her mother.

1 Crimes Act 1961, s 132(3), maximum penalty 10 years’ imprisonment.

R v RUTHERFORD [2019] NZHC 1628 [12 July 2019]

[3] Mr Rutherford bent down towards her and placed his arm around her waist and grabbed her on the bottom. The victim ran off to find her mother in the store. Mr Rutherford attempted to leave the store but was stopped by store staff.

[4] The victim impact statement notes the victim has suffered from ongoing emotional harm. She feels a lack of confidence in social situations. She is less comfortable giving affection to male family members. She reports seeing the offender when closing her eyes, nightmares, and is unwilling to walk anywhere alone.

Offending history

[5] Mr Rutherford is 63 years old. He has five previous convictions, all for indecent acts on children.

[6] In 1993 he was convicted and sentenced to nine months’ imprisonment for two charges of indecent assault on a female under 12 and 16 respectively. The victim was known to him.

[7] In 2015 he was sentenced to two years of community detention for indecent act on a child under 12. That charge also arose from an incident at The Warehouse, where Mr Rutherford approached the victim in the toy aisle and put his hand up her dress and touched her in the middle of her back and on her hip. That gave rise to his first strike pursuant to s 86B of the Sentencing Act 2002.

[8] In 2016 Mr Rutherford was sentenced to eight months’ imprisonment for indecent assault on a female under 12 and breaching his extensive supervision order by having contact with a person under 16. The indecent assault charge on that occasion arose from an incident at a playground. Mr Rutherford encouraged the victim to climb up a slide, and as she did, he put his hand on her bottom and pushed her from behind, moving with her to keep his hand in conduct with her bottom. Those charges gave rise to his second strike pursuant to s 86C of the Sentencing Act.

Three strikes regime

[9] This is Mr Rutherford’s third-strike…

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 Rutherford

Details

AGLC: R v Rutherford [2019] NZHC 1628
Case: [2019] NZHC 1628
Decision Date: 12 July 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the case of the Crown versus Grahame John Rutherford was heard on 12 July 2019. Mr Rutherford was convicted of doing an indecent act on a child, having pleaded guilty to the charge. The court was required to determine the appropriate sentence under the three-strikes regime, which mandates a maximum term of imprisonment for a third-strike offence. The court also needed to assess whether it would be manifestly unjust to impose a sentence without parole.

The court began by considering the appropriate starting point for the sentence, taking into account the facts of the case and relevant precedents. The court found the offending in this case to be less serious than in previous cases and considered a starting point of 12 months' imprisonment appropriate. The court then adjusted the starting point by adding six months to reflect Mr Rutherford's criminal history and the need to protect the community. The court also noted that Mr Rutherford would have been entitled to a 25% discount for his early guilty plea, which would have resulted in a sentence of approximately 14 months' imprisonment.

The court then assessed whether the lack of eligibility for parole under the three-strikes regime would be manifestly unjust in this case. The court considered the nature and seriousness of Mr Rutherford's previous offences, as well as his risk of reoffending and potential for rehabilitation. The court concluded that imposing a sentence of 10 years without parole would be manifestly unjust, as it would significantly delay the commencement of rehabilitation programmes, potentially creating adverse consequences for the community in the longer term.

Ultimately, the court sentenced Mr Rutherford to 10 years' imprisonment but did not order that this sentence be served without parole, as the court was satisfied that to do so would be manifestly unjust. The defendant's particulars were entered on the Child Protection Register given he has been subject to a sentence of imprisonment.

Orders