R v Takamore - [2013] NZHC 719

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-044-000627 [2013] NZHC 719

R

v

FRED TAKAMORE

Hearing: 11 April 2013

Appearances: K Lummis for the Crown
R Mansfield for the Prisoner

Judgment: 11 April 2013

SENTENCING NOTES OF WOOLFORD J

Solicitors:

Crown Solicitor, Auckland
R Mansfield, Barrister, PO Box 2674, Auckland 1140

R V TAKAMORE HC AK CRI-2012-044-000627 [11 April 2013]

[1] Mr Takamore, you appear for sentence today having been found guilty by a jury on the following charges:

(a) one count of sexual violation by unlawful sexual connection, which

carries a maximum penalty of 20 years’ imprisonment;1 and

(b) one representative count of indecent assault on a female under 12,

which carries a maximum penalty of 10 years’ imprisonment.2

Facts

[2] The victim in this case, who I will call S, was 11 years old at the time of the offending. You are not related to her. The offending occurred during the Christmas holidays of 1993 to 1994 when S stayed over at a friend’s farm house. During this time, you and your family also stayed at the house. S was friends with your children and she had met you through school and sporting activities.

[3] On a number of occasions during the summer you approached S while she was alone in the house. You would touch her breasts on top of her clothing and kiss her. This gives rise to the count of indecent assault on a girl under 12. It is a representative count, meaning that it happened on more than one occasion.

[4] On one occasion you took S and your son to Orewa beach and parked in a carpark near KFC. You asked your son to leave the car and go down to the beach. You told S to get into the front seat. You then lowered the seat and began rubbing her breasts and vagina. This was initially over her clothes, but you then removed her shorts and underwear and inserted your fingers into her vagina. S described a stinging sort of pain and feeling sore and uncomfortable. She later found blood in her underwear. This offending gives rise to the charge of sexual violation by
unlawful sexual connection.

1 Crimes Act 1961, ss 128(1)(b) and 128B(1).
2 Crimes Act 1961, s 133(1)(a).

[5] I will now move on to the effect your offending has had on S.

[6] S has provided the Court with a victim impact statement. She says you were a man she and her family trusted, yet you took advantage of her in a way no child should have to experience. S says your offending has seriously impacted on her life and it has, and I quote, “mentally and emotionally ... screwed me up for years”. She says that it made her an angry young girl and that you basically ruined her life. It took S a number of years to put your offending behind her and to move on with her life.

Personal circumstances

[7] I turn…

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 Takamore

Details

AGLC: R v Takamore [2013] NZHC 719
Case: [2013] NZHC 719
Decision Date: 11 April 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Fred Takamore was sentenced following his conviction for sexual violation by unlawful sexual connection and indecent assault on a female under 12 years of age. The legal issues before the court involved determining the appropriate starting point for sentencing, considering the aggravating and mitigating factors, and deciding the final sentence. The court identified the sexual violation by unlawful sexual connection as the lead offence, acknowledging the presence of aggravating factors such as planning, premeditation, vulnerability of the victim, harm caused, scale of the offence, and breach of trust. The Crown submitted a starting point of four to five years' imprisonment, while the defence argued for a lower starting point of three years' imprisonment, suggesting a discount for the offender's good character.

The court, after reviewing several comparable cases, determined that the appropriate starting point was four years' imprisonment for the sexual violation charge, with an additional two months for the representative count of indecent assault, resulting in a total starting point of four years and two months' imprisonment. Considering the offender's lack of prior convictions and positive character references, the court reduced the starting point by six months, leading to a final sentence of three years and eight months' imprisonment. The terms of the sentences were to be served concurrently.

In conclusion, the court sentenced Fred Takamore to three years and eight months' imprisonment for the charge of sexual violation by unlawful sexual connection, with the sentence for the indecent assault charge to run concurrently, resulting in an effective total sentence of three years and eight months' imprisonment.

Orders