R v T - [2020] NZHC 3360

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2019-019-2213

[2020] NZHC 3360

THE QUEEN

v

T

Hearing: 11 December 2020

Appearances:

R Mann for the Crown

J Gurnick for the Defendant

Sentence:

11 December 2020

SENTENCING NOTES OF GORDON J

Solicitors: Crown Solicitor, Hamilton Counsel: J Gurnick, Hamilton

R v T [2020] NZHC 3360 [11 December 2020]

Introduction

[1] Mr T, at the age of 54 years, you appear today for sentence having pleaded guilty, following a sentence indication, to 19 charges of sexual offending.

[2]The charges are:

(a)Six of indecency with a girl between 12 and 16 (four are representative);1

(b)Two of rape (one is representative);2

(c)Three of indecency with a girl under 12 (two are representative);3

(d)Four of sexual violation by unlawful sexual connection;4

(e)One of sexual violation by rape;5

(f)One of assault with intent to commit sexual violation;6

(g)One of sexual conduct with a child under 12;7 and

(h)One of abduction for purposes of sexual connection8

[3] The most serious of the offences, sexual violation by unlawful sexual connection, carry a maximum penalty of 20 years’ imprisonment.

1      Crimes Act 1961, s 134(2)(b) and s 134(2)(c): maximum penalty of seven years’ imprisonment (corrected in Crown submissions). Note Charge 1 and Charge 2 are doing an indecent act and Charge 9 and Charge 10 are inducing an indecent act.
2      Crimes Act 1961, s 128(1)(a): maximum penalty of 14 years’ imprisonment.
3      Crimes Act, s 133(1)(a) (indecent assault) and s 133(1)(b) (doing an indecency): maximum penalty of 10 years’ imprisonment.
4      Crimes Act 1961, s 128(1)(b): maximum penalty of 14 years’ imprisonment for some of the charges and 20 years’ imprisonment for others.
5      Crimes Act 1961, s 128(1)(a): maximum penalty of 14 years’ imprisonment.
6      Crimes Act 1961, s 129(2): maximum penalty of 10 years’ imprisonment.
7      Crimes Act 1961, s 132(3): maximum penalty of 10 years’ imprisonment.
8      Crimes Act 1961, s 208(b): maximum penalty of 14 years’ imprisonment.

[4] At the time you entered your guilty pleas, the Crown indicated it would seek a sentence of preventive detention. The Court accordingly ordered reports from two health assessors under s 88 of the Sentencing Act 2002 (the Act).

[5] The Crown submits you represent a significant risk of future serious offending and a sentence of preventive detention is necessary to protect the community. Mr Gurnick, appearing on your behalf, says that this risk has not been established or is declining due to the advancement of age, and that a lengthy determinate sentence with a minimum period of imprisonment will adequately protect the community. A sentence of preventive detention cannot therefore be justified.

[6]I will begin by summarising the facts of your offending.

Background

[7]You are related to the four victims:

(a)Victim L is your sister;

(b)Victim M is your niece;

(c)Victim N is your niece;

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 T

Details

AGLC: R v T [2020] NZHC 3360
Case: [2020] NZHC 3360
Decision Date: 11 December 2020

CaseChat Overview and Summary

The defendant, Mr T, pleaded guilty to 19 charges of sexual offending, including indecency, rape, and sexual violation. The Crown sought a sentence of preventive detention, arguing that Mr T posed a significant risk of future serious offending. The defence argued that Mr T's risk had not been established or was declining due to his age, and that a lengthy determinate sentence with a minimum period of imprisonment would adequately protect the community. The court ordered reports from two health assessors and determined an appropriate finite sentence before considering whether to impose a sentence of preventive detention.

The court found that the starting point for Mr T's sentence was 19 years' imprisonment, which was consistent with the purposes and principles of sentencing. The court found that a discount of 27.5 per cent was appropriate for mitigating factors, resulting in a final sentence of 13 years, nine months' imprisonment. The court also imposed a minimum period of imprisonment of two-thirds of the term of 13 years, nine months' imprisonment if it did not impose a sentence of preventive detention.

The court found that Mr T was eligible for preventive detention and that the evidence indicated that he was at risk of committing serious sexual offences at the expiry date of the determinate sentence. However, the court was satisfied that a finite sentence, coupled with a treatment programme, would provide the opportunity for Mr T to address his tendency towards sexual offending against children in his whānau. The court also noted that a risk assessment could be made at the time of Mr T's release and, if necessary, an extended supervision order with intensive supervision could be imposed at that time.

In conclusion, the court sentenced Mr T to 13 years, nine months' imprisonment on the lead charges of sexual violation by unlawful sexual connection, with a minimum term of nine years and two months' imprisonment before being eligible for parole. The court sentenced Mr T on the remaining charges concurrently with the sentence on the lead charge of sexual violation by rape.

Orders