R v S - [2016] NZHC 1457

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF PRISONER PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011.

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-092-14614 [2016] NZHC 1457

THE QUEEN

v

S

Charges:
Plea:

Wounding with intent (2); Kidnapping

Not Guilty

Counsel:

Y V Yelavich for Crown
M W Ryan for Prisoner

Sentenced:

30 June 2016

SENTENCING NOTES OF BREWER J

Solicitors: Kayes Fletcher Walker (Auckland) for Crown
Counsel: Mark Ryan (Auckland) for Prisoner

R v S [2016] NZHC 1457 [30 June 2016]

Introduction

[1] S, you appear for sentence on one charge of kidnapping (the maximum penalty for which is 14 years’ imprisonment), one charge of disfiguring with intent to injure and one charge of wounding with intent to injure (both those charges have a maximum penalty of seven years’ imprisonment).

[2] You were found guilty of these charges by a jury. I will not go through the facts in detail other than to outline the basis upon which I will sentence you.

Facts

[3] You encountered the complainant when she was 17 years old and a runaway from State care. You were a 38 year old man living as a solo father. Almost immediately, the complainant moved in with you. You were in an intimate relationship with her for approximately five months. She had no income and she was dependent on you to a large extent both physically and emotionally.

[4] The complainant was a troubled young woman. She had a history of self- harm and she continued to self-harm while she was living with you. You were aware also of her other mental health issues.

[5] Shortly before Christmas 2014, you decided that the complainant had been sexually abusing your daughter by touching her. Initially, the complainant denied doing any such thing. However, you would not accept the denial and, as the complainant said in her evidence, drilled her and drilled her until she made an admission.

[6] You were very angry and you threatened to throw her out. The complainant did not want the relationship to end, and eventually you said that she could stay so long as she consented to you breaking her right index finger. That was the finger you had decided had touched your daughter. I accept that the complainant agreed to having her finger broken by you. That was so you would let her stay with you. You went and got a paving brick and the complainant put her finger on it. You got a hammer. You got her to put a gag in her mouth to stifle the screams which you

expected would result. She covered her eyes and you put on a favourite Judge Dredd song and told her that sometime during the playing of the song you would break her finger with the hammer. The complainant knew that you would break her…

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 S

Details

AGLC: R v S [2016] NZHC 1457
Case: [2016] NZHC 1457
Decision Date: 30 June 2016

CaseChat Overview and Summary

The defendant, identified as S, was sentenced on charges of kidnapping, disfiguring with intent to injure, and wounding with intent to injure. The court had to determine the appropriate sentence for these offences, which were committed against a complainant who was living with the defendant as part of an intimate relationship. S was found guilty by a jury, and the court had to consider the relevant legal principles in determining an appropriate sentence.

The key legal issue was the appropriate starting point for sentencing, which was influenced by the nature and extent of the violence used, the use of a weapon, the vulnerability of the complainant, the premeditated nature of the offences, the motive of revenge, and the harm caused to the complainant. The court found that the aggravating factors outweighed any mitigating factors, such as the defendant's lack of a significant criminal history and the complainant's initial consent to the finger injury. The court also considered the purposes of sentencing, including holding the defendant accountable for the harm caused, promoting a sense of responsibility, denouncing the conduct, deterring similar offences, and protecting the community.

The court determined that a starting point of six-and-a-half years’ imprisonment was appropriate, taking into account the totality of the defendant's offending. The sentences for the charges of kidnapping, disfiguring with intent to injure, and wounding with intent to injure were to be served concurrently, resulting in an effective sentence of six-and-a-half years’ imprisonment. The defendant was also discharged on a charge of threatening to do grievous bodily harm, which had the effect of an acquittal.

The court emphasised the importance of addressing domestic violence, particularly when it involves a disparity of power and the exploitation of that power, as was the case in this instance. The court also highlighted the ongoing effects of the defendant's offending on the complainant, including physical, dental, and mental health consequences. Overall, the court considered the sentence to be in keeping with the overall criminality of the defendant's offending.

Orders