R v Tatham - [2021] NZHC 815

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-009-3256

[2021] NZHC 815

THE QUEEN

v

GLYN DONALD TATHAM

Hearing: 15 April 2021

Appearances:

A McConachy for Crown

A J D Bamford for Defendant

Judgment:

15 April 2021

SENTENCING REMARKS OF LANG J

Solicitors:
Crown Solicitor, Rotorua

R v TATHAM [2021] NZHC 815 [15 April 2021]

[1] Mr Tatham, you appear for sentence on two charges of indecently assaulting a boy between the age of 12 and 16 years.1 The maximum penalty for those offences is ten years imprisonment. You also appear for sentence on a charge of sexual violation by unlawful sexual connection.2 The maximum sentence for that offence is 20 years imprisonment.

[2]The convictions were entered after a jury found you guilty on the charges.

The facts

[3] The charges were laid as a result of two incidents that occurred during 1997. The complainant was a 12 year old boy who lived next door to you. He would visit your address along with other young persons. You gained his trust by allowing him to use electronic games and providing him with sweets and other things to eat.

[4] The first charge of indecent assault relates to an incident that occurred when the victim was staying overnight at your address. He awoke to find you pulling your pants down. You then took hold of the victim’s penis and fondled it for several minutes. The victim pretended to be asleep and brought the incident to an end by turning over in his bed.

[5] The remaining charges were laid as a result of a second incident that occurred approximately two weeks later when the victim was again staying overnight at your address. On this occasion his mother and stepfather had had an argument and he left his home address to stay with you for that reason. On this occasion the victim awoke to find you pulling his pants down. You then began stroking his penis back and forth. The victim reacted by freezing and pretending to be asleep. You continued to stroke his penis and did so with sufficient force that it caused him pain. He then rolled over on his stomach. You took that opportunity to insert your penis into the victim’s anus to the point where I am satisfied you ejaculated inside, or around, his anus.

1 Crimes Act 1961, s 140A(1)(a).
2 Crimes Act 1961, s 128(1)(b).

[6] You defended the charges on the basis that you had no recollection of these events. You denied, however, that you would have intentionally engaged in anal intercourse. You said that on a previous occasion you had accidentally engaged in behaviour of that type, but this was unintentional. You said that if the events that the victim described had in fact occurred, you would have merely been rubbing your penis against or between his buttocks. Any penetration of his anus would therefore have been unintentional. The jury’s verdict on the sexual…

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 Tatham

Details

AGLC: R v Tatham [2021] NZHC 815
Case: [2021] NZHC 815
Decision Date: 15 April 2021

CaseChat Overview and Summary

The defendant, Glyn Donald Tatham, was sentenced by Justice Lang in the High Court of New Zealand Rotorua Registry. Tatham was found guilty of two charges of indecently assaulting a boy aged between 12 and 16 years, and a charge of sexual violation by unlawful sexual connection. The legal issues included determining an appropriate starting point for sentencing, considering the totality principle, and applying discounts for guilty pleas and rehabilitation efforts. The court had to balance the severity of the current offences with the defendant's previous convictions and the time gap between the incidents.

Justice Lang considered the defendant's previous convictions, which involved similar offences against young boys. The court determined that the appropriate starting point for sentencing, had all charges been considered together in 2014, would have been around 17 years imprisonment. Given the significant gap between the 1997 offences and the 2014 ones, the court decided on a starting point of 14 years imprisonment. Discounts for guilty pleas and the defendant's willingness to undergo treatment reduced this to 12 years six months. An additional reduction for the defendant's challenging upbringing brought the final sentence to 11 years six months imprisonment, to be served cumulatively with the current eight-year sentence. The court also noted the defendant's ongoing risk of reoffending and the need for future treatment and supervision.

The final orders included a sentence of three years six months imprisonment on the charge of sexual violation, to be served cumulatively, and two years imprisonment on each of the indecent assault charges, to be served concurrently with each other and the sexual violation sentence. The court lifted the interim suppression order on the defendant's name, as no material was presented to justify a permanent order. The defendant is to serve a cumulative total of three years six months additional imprisonment for the current charges.

Orders