R v S - [2013] NZHC 1572

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF PRISONER PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CRI-2012-083-1009 [2013] NZHC 1572

THE QUEEN

V

S

Counsel: L C Rowe for Crown
D M Goodlet for Prisoner

Sentencing: 27 June 2013

SENTENCING NOTES OF WILLIAMS J

[1] S, it is my task to sentence you on eight counts of sexual conduct with a child under 12, one count of rape, and five counts of attempted sexual violation, being attempted rape and attempted digital penetration of a child under 12.

[2] Those charges relate to three child victims. You pleaded guilty to all counts and your sentencing has been transferred to this court in light of the possibility that you may face a further sentence of preventive detention.

[3] Sentencing for you is complicated by the fact that you are already serving a sentence of preventive detention as a result of separate sexual offending that
occurred during the same time period to which these current charges relate.

R v S [2013] NZHC 1572 [27 June 2013]

[4] That sentence included a minimum period of imprisonment of seven years. You will be eligible for parole in relation to those matters on 13 December next year.

[5] The Crown argues that a second sentence of preventive detention should be imposed – suggesting essentially that if preventive detention was appropriate for your previous offending, it must also be necessary for this offending because the offending was worse. Although, in a later submission from Mr Rowe that position was somewhat modified.

[6] In any event, your lawyer says that the focus should be on the appropriate minimum period of imprisonment – effectively arguing that the current charges should be sentenced – or resentenced – on a totality basis in combination with your sentence for the offending that you are currently in prison for.

[7] Your first victim was a girl. She suffered under your offending from the ages of six to 10. You met the then partner of her mother. You befriended her mother and gained the mother’s trust. You carefully wove your way into their lives. You behaved sexually towards that child from an early stage, stroking her inappropriately, having her place her hand in the area of your penis over your clothing, touching her in her genital area. Then you graduated over time to more serious sexual conduct with this particular victim – further touching, attempts to kiss and then this lead count of rape.

[8] The second victim was also a girl – a child of a person you met through the first victim’s mother. She was also between six and 10 when you offended against her. Once again, your MO was to gain the trust of the parents and eventually because her mother worked on nightshift, you were actually…

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 [2013] NZHC 1572
Case: [2013] NZHC 1572
Decision Date: 27 June 2013

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v S involved the sentencing of the accused on various counts of sexual conduct with a child under 12, rape, and attempted sexual violation. The accused, S, had already been serving a sentence of preventive detention for separate sexual offences. The court had to decide on an appropriate sentence for the current charges, taking into account the possibility of imposing a second sentence of preventive detention. The legal issues involved determining the appropriate minimum period of imprisonment and whether a second sentence of preventive detention was necessary.

The court examined the nature and extent of the harm caused to the victims, as well as the accused's criminal history and mental health issues. The court found that the accused had a long history of sexual offending against children and had reoffended within months of release from prison. The court also considered the impact of the accused's background and mental health issues on his offending. The court concluded that a second sentence of preventive detention was not necessary, as the accused was already serving one such sentence. However, the court imposed an additional minimum period of imprisonment of approximately two and a half years to ensure the protection of the community.

The court sentenced the accused to 12 years' imprisonment for the lead charge of rape, and concurrent sentences for the other charges. The court also directed the release of the psychiatrist's and psychologist's reports to Corrections. Finally, the court made an order prohibiting the publication of the names, addresses, occupations, or identifying particulars of the accused.

Orders