R v Shirley - [2012] NZHC 2602

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2012-020-1308 [2012] NZHC 2602

THE QUEEN

v

MATTHEW JAMES SHIRLEY

Hearing: 9 October 2012

Counsel: J Rielly for the Crown
E J Forster for Mr Shirley

Judgment: 9 October 2012

SENTENCE OF WOODHOUSE J

Solicitors / Counsel:
Mrs J Rielly, Elvidge & Partners, Office of the Crown Solicitor, Napier
Mr E J Forster, Barrister, Hastings

R V SHIRLEY HC NAP CRI-2012-020-1308 [9 October 2012]

[1] Mr Shirley, you may be seated while I explain the sentence.

[2] The critical question on this sentence is whether you should be sentenced to a long but finite period of imprisonment or whether you should be sentenced to preventive detention. And you are, of course, well aware of that. I want to state at the outset that I am not going to sentence you to preventive detention. I need to take some time to explain the reasons. I want to explain those reasons to you because I really do hope that you listen with care to what I have to say and then in due course take advantage of all of the assistance that will be available to you, and which you have said you will take advantage of. I also have to explain this sentence to others – most directly to the victims of what are appalling offences by you. And I have to explain why I am doing this to the community as a whole.

[3] You appear for sentence on four charges to which you pleaded guilty. These are sexual offences against two young girls, aged 10 and 11.

[4] There are two offences of sexual violation, one by rape and one by unlawful sexual connection. These offences have a maximum penalty of 20 years imprisonment. There are two offences of doing an indecent act on a child under 12. The maximum penalty is 10 years imprisonment.

[5] You were to be sentenced in the District Court, but that Court referred the sentence to this Court to determine whether a sentence of preventive detention should be imposed. It is completely understandable why the District Court did that.

Facts

[6] The victims are sisters. I will refer to them as A and B. When these offences occurred, in April 2012, A was aged 10 and B was aged just 11. They live with their mother.

[7] You had known their mother for some time. In April 2012 you arrived in their home town and asked their mother if you could stay with her. You had been

released from prison about three weeks earlier and told the mother that you had no means of supporting yourself. There was a friendship between you and the mother.

[8] On a Wednesday in April the mother told you that she was going out the following Friday and she would get a babysitter to look after the children. You told her that you would babysit. You told her she deserved a night out.

[9] During the afternoon of…

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 Shirley

Details

AGLC: R v Shirley [2012] NZHC 2602
Case: [2012] NZHC 2602
Decision Date: 9 October 2012

CaseChat Overview and Summary

Matthew James Shirley was convicted on four charges of sexual offences against two young girls, aged 10 and 11. The charges included sexual violation by rape and unlawful sexual connection, as well as performing indecent acts on a child under 12. The case was heard in the High Court of New Zealand, Napier Registry, with Justice Woodhouse presiding. The key legal issue was whether Shirley should be sentenced to a long but finite period of imprisonment or preventive detention. The court considered the nature of the offences, the harm caused to the victims, Shirley's criminal history, and the risk of re-offending. After assessing the factors outlined in the Sentencing Act, Justice Woodhouse decided not to impose a sentence of preventive detention, but rather a lengthy finite sentence of 9 years and 2 months imprisonment, with a minimum period of imprisonment of 6 years. The court emphasized the importance of addressing Shirley's underlying issues, such as alcohol dependence and the psychological effects of childhood sexual abuse, in order to reduce the risk of re-offending. The court also warned Shirley of the severe consequences if he were to commit another serious violent offence, including the likelihood of a sentence of preventive detention.

Orders