R v Shepherd - [2018] NZHC 389

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-005531

[2018] NZHC 389

THE QUEEN

v

DENNIS PATRICK POHARAMA SHEPHERD

Hearing: 6 March 2018

Appearances:

T McGuigan for the Crown

K A N Trotter for the Defendant

Sentence:

6 March 2018

SENTENCING NOTES OF HINTON J

Counsel/Solicitors:
Meredith Connell, Auckland Karl Trotter, Barrister, Auckland

R v DENNIS PATRICK POHARAMA SHEPHERD [2018] NZHC 389 [6 March 2018]

Offences

[1] Following a guilty plea on 21 November 2017, the District Court declined jurisdiction to sentence you, Mr Shepherd. Moore J, in a minute of 29 November 2017, entered convictions against you and remanded you in custody for sentencing on two charges of indecent assault under s 135 of the Crimes Act 1961 and one charge of male assaults female under s 194(b) of the Crimes Act 1961.

[2]The Crown seeks preventive detention.

Facts

[3] On 13 May 2017, the victim and her partner were celebrating a friend’s birthday by drinking alcohol outside the Auckland City Mission. The victim was intoxicated.

[4] You suggested to the victim and her partner that they accompany you back to your flat to continue drinking. They accepted your offer.

[5] When the three of you arrived at the flat, you all continued to consume alcohol. The victim’s partner departed shortly afterwards, leaving the two of you alone.

[6] The victim and you began to dance, during which you attempted to touch her breasts. She pushed away your hand, moved away and sat down on the couch.

[7] You followed the victim to the couch. You grabbed her around the waist and pulled her towards you. You then grabbed at her singlet and her bra, pulling them down to expose her chest, at which point you sucked on her left breast.

[8] In an attempt to get away from you, the victim stood up, but by this point you had locked your legs around her, immobilising her. You then proceeded to pull your shorts down below your waist.

[9] You grabbed the victim’s hand and placed it on your penis. You moved her hand up and down on your penis. She managed to pull her hand away.

[10] You then forcefully removed the victim’s pants and underwear, pulling them down around her knees.

[11] She attempted to fight you off, but you are considerably larger than her. You forced her onto her back on the floor and sat on top of her. Once again, you placed her hand on your penis and moved it up and down.

[12] The victim continued to attempt to fight you off. She yelled at you, telling you to stop. You then punched her in the side of the face with a closed fist. As a result of this assault, the victim received bruising to the right side of her face and lip, and a small cut to her lip.

[13]The victim managed to get out from underneath you and she left the apartment.

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 Shepherd

Details

AGLC: R v Shepherd [2018] NZHC 389
Case: [2018] NZHC 389
Decision Date: 6 March 2018

CaseChat Overview and Summary

Dennis Patrick Poharama Shepherd was convicted by the District Court of two charges of indecent assault and one charge of male assaults female. The Crown sought preventive detention. The court accepted the submissions of Crown and defence that the indecent assaults should be taken as the lead charges, with the charge of male assaults female operating as a factor in determining the appropriate starting point. The court adopted a starting point of three years’ imprisonment for the offending overall. The only relevant aggravating factor was Shepherd's conviction history, which showed a pattern of serious violent and sexual offending towards vulnerable women. The court accepted that an uplift was appropriate and increased the starting point by eight months. The court allowed the maximum reduction of 25 per cent for the guilty plea. The court found that a sentence of preventive detention was appropriate as Shepherd is likely to commit another qualifying sexual offence if released at the sentence expiry date, and the community would not be sufficiently protected from the high risk of future offending if preventive detention was not imposed. The court sentenced Shepherd to two years, nine months’ imprisonment for the offences of indecent assault, to be served concurrently, and to one-and-a-half months’ imprisonment for the offence of male assaults female, to be served concurrently, and to preventive detention with a minimum non-parole period of five years’ imprisonment.

Orders