R v Smith - [2015] NZHC 1992

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-077-585 [2015] NZHC 1992

THE QUEEN

v

STEVEN COLIN SMITH

Hearing: 21 August 2015

Appearances:

N Tahana for Crown
M J Hine for Defendant

Sentence:

21 August 2015

SENTENCE OF M PETERS J

Solicitors: Gordon Pilditch, Crown Solicitor, Rotorua
Families Matter Law Practise, Rotorua

R v SMITH [2015] NZHC 1992 [21 August 2015]

[1] Mr Smith, you are for sentence on 10 charges to which you pleaded guilty in the Rotorua High Court on 3 August 2015. You initially pleaded not guilty to the various charges, but changed your plea on the day your trial was to commence.

[2] Five of the offences are sexual violation by rape, two are sexual violation by unlawful sexual connection and three are of indecent assault on a person under the age of 16.

[3] With the exception of the one offence you committed against J in 1989, you committed the offences between 2007 and 2009 against K and T.1

[4] The most serious offences are those of sexual violation. The maximum penalty for that offending, insofar as committed against K and T, is 20 years’ imprisonment. It is of academic interest only that in 1989, when you offended against J, the maximum penalty was less – some 14 years.

[5] The maximum term of imprisonment for your indecent assaults, all of which were committed against T, is 7 years.

[6] J was 15 and you were 19 or 20 when you offended against her in 1989. J went home to visit her parents. They were not at home but you were, and you took advantage of their absence. You raped J whilst she was in the shower, despite the fact that she was crying and screaming and attempting to push you off.

[7] You were in your late 30s when you offended against K and T between 2007 and 2009.

[8] K was aged between 7 and 9 at the time and contending with a learning disability. Mr Hine has drawn my attention to s 9A of the Sentencing Act 2002 which of course applies but I accept the Crown’s point that in the circumstances it
adds very little, given the other matters to which I will come.

1 The penalty for sexual violation was increased from 14 years to 20 years on 1 September 1993 by s 2 Crimes Amendment Act (No 3) 1993 (1993 No 62). Charges 1 – 3, 6 and 9 are brought pursuant to s 128(1)(a) Crimes Act 1961, Charges 4 and 5 are brought pursuant to s 128(1)(b) Crimes Act 1961 and Charges 7 – 9 are brought pursuant to s 134(3) Crimes Act 1961.

[9] You raped K for the first time, which is charge 2 – in the shower, again –

when you were staying at the house at which she was living.

[10] Charges…

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 Smith

Details

AGLC: R v Smith [2015] NZHC 1992
Case: [2015] NZHC 1992
Decision Date: 21 August 2015

CaseChat Overview and Summary

The case of R v Smith before the High Court of New Zealand involved the sentencing of Steven Colin Smith on ten charges to which he had pleaded guilty. The charges included sexual violation by rape, sexual violation by unlawful sexual connection, and indecent assault on a person under the age of 16. The offenses were committed between 1989 and 2009 against three victims, K, T, and J, with Smith's history indicating a clear propensity for sexual offending against young girls. The maximum penalties for these offenses ranged from 6 months to 20 years imprisonment, depending on the nature and timing of the offenses.

The court had to determine the appropriate starting point for sentencing, considering the culpability inherent in Smith's offending and adjusting this starting point for factors relating to him personally. The court also had to consider the impact of Smith's guilty plea on his sentence. The Crown and defense counsel agreed on a "holistic" starting point that reflected the wrongdoing in all of Smith's offending, with all sentences to be concurrent.

The court found that Smith's offending fell within the most serious band (band 3) as it involved multiple sexual violations, premeditation, and grooming of one of the victims. The court set a starting point of 13 years and 6 months for the sexual violation charges and uplifted this by a further 6 months for the indecent assaults on T, resulting in a total starting point of 14 years. Taking into account Smith's guilty plea, the court decided on a 15% discount, resulting in a total sentence of 12 years imprisonment. The court imposed concurrent sentences for all charges, with the longest sentence being 12 years for the sexual violation against K and 8 years for the sexual violation against J, and 6 months for the indecent assaults on T.

The final orders of the court were that Steven Colin Smith be sentenced to 12 years imprisonment on the sexual violation charge against K, 12 years concurrently for the other sexual violation charges against K and T, 8 years concurrently for the sexual violation against J, and 6 months concurrently for the indecent assaults against T. The sentences were to be served concurrently, with the longest sentence being 12 years imprisonment.

Orders