R v The Queen - [2019] NZHC 2464

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2019-483-10

[2019] NZHC 2464

R

v

THE QUEEN

Hearing: 24 September 2019

Appearances:

R R M Simon for Appellant R N Benic for Respondent

Judgment:

30 September 2019

JUDGMENT OF CLARK J

Introduction

[1] On 31 July 2019 R was sentenced before Judge Crayton in the District Court at Whanganui to 18 months’ imprisonment1 in respect of one charge of doing an indecent act with a girl under 12 and three charges of doing an indecent act with a young person under the age of 16.2 The victims were his daughters.

1 R v R [2019] NZDC 14842.
2 Crimes Act 1961, s 132(3), maximum penalty 10 years imprisonment; s 134(3), maximum penalty 7 years imprisonment.

R v R [2019] NZHC 2464 [30 September 2019]

[2] R appeals his sentence on the grounds the Judge was wrong to impose a sentence of imprisonment and erred in concluding R did not begin to address the drivers of his offending and ought to have imposed a sentence of home detention.

[3] The Crown submits it was open to the Judge to impose a sentence of imprisonment and a sentence of home detention would not adequately achieve the relevant purposes and principles of sentencing.

Factual background

[4] The offending occurred in 2017 and 2018 when the girls were aged 11 and 14. The daughters lived with their mother, R’s ex-partner, but stayed with R every second weekend.

[5] In December 2017 the 11-year-old was staying at her grandparents’ house. She was lying on a mattress on the floor when R lay down next to her. He put his hand under her bra and cupped her breast with his fingers. She was frightened and pretended to be asleep. R continued to hold his hand on her breast for five minutes.

[6] On 22 June 2018 the girls were staying with R at his home. R had been drinking that night. He gave his 14-year-old daughter a drink of Coke with bourbon in it. After she went to bed, he continued drinking. Later that night R got into bed with his sleeping daughter. He pushed his groin against her and she said she could feel his penis pushing against her. He put a hand on her bottom and moved a hand over her clothing to the vicinity of her vagina. He then put his hands under her top to feel her breasts. She said she was upset, frightened and felt sick.

[7] In explanation R said he simply could not remember either incident. He stated he often drinks to excess and will wake in the morning having forgotten the events of the night before. R also said he did not think his daughters would have been lying as they were both truthful people.

Sentence under appeal

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 The Queen

Details

AGLC: R v The Queen [2019] NZHC 2464
Case: [2019] NZHC 2464
Decision Date: 30 September 2019

CaseChat Overview and Summary

The case of R v The Queen involved an appeal against a sentence imposed on R, who was convicted of indecent acts with his daughters. The High Court of New Zealand considered the appeal, with the appellant arguing that the District Court judge was incorrect in imposing a sentence of imprisonment instead of home detention. The Crown maintained that the judge was justified in imposing imprisonment and that home detention would not adequately address the purposes and principles of sentencing.

The legal issue before the court was whether the District Court judge erred in imposing a sentence of imprisonment instead of home detention. The court considered the Sentencing Act 2002, which provides that home detention may be imposed as an alternative to short-term imprisonment if certain conditions are met. The court also examined the factors considered by the judge, including the need for deterrence, protection of the community, and R's response to his conviction.

The High Court found that the District Court judge was entitled to conclude that the purposes and principles of sentencing would not be met by a sentence of home detention. The judge had concerns about R's lack of acceptance of responsibility, his failure to acknowledge his sexual arousal at the time of the offending, and his limited insight into the impact of his offending on the victims. The High Court agreed with the District Court judge's assessment of the offending and found that R had not established any error in the sentence imposed.

The appeal was dismissed, and the original sentence of 18 months' imprisonment was upheld. The court found that the judge's decision to impose imprisonment was justified, given the nature of the offending and R's lack of acceptance of responsibility and insight into the impact of his actions on the victims.

Orders