R v The Queen - [2018] NZHC 2766

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-485-000068 [2018] NZHC 2766

BETWEEN
R

Appellant

AND

THE QUEEN Respondent

Hearing: 23 October 2018

Counsel:

J B Slankard and K M Pedder for Appellant
J A Eng for Respondent

Judgment:

25 October 2018

JUDGMENT OF COLLINS J

Introduction

[1] Ms R appeals a sentence of three years and three months’ imprisonment imposed by Judge Kelly in the District Court at Wellington, after she pleaded guilty to charges of:1

(1) dealing in a person under 18 for sexual exploitation;2

(2) publishing an intimate visual recording;3 and

1      R v Davie [2018] NZDC 17837.
2      Crimes Act 1961, s 98AA; maximum penalty 14 years’ imprisonment.
3      Section 216J; maximum penalty three years’ imprisonment.

R v R [2018] NZHC 2766 [25 October 2018]

(3) possessing an objectionable publication.4

[2] Ms R appeals on the basis her sentence was manifestly excessive. She says the starting point adopted by Judge Kelly did not reflect the seriousness of her offending and was not comparable with the starting point for her co-offenders.

The facts

[3] Ms R’s offending on the lead charge of dealing in a person under 18 for sexual exploitation arose within the context of a plan initially devised by her co-offenders, Mr Davie and Ms Platt. Ms Platt is a 57-year-old transgender sex worker from Palmerston North. Ms R, who is also a sex worker, is about 56 years old. Mr Davie is about 74 years old, and is a former client of both Ms Platt and Ms R.

[4] Mr Davie and Ms Platt began talking on a dating website on 15 May 2017. They initially discussed the possibility of a sexual meeting but their conversation quickly developed into their mutual interest in sexually offending against children after Mr Davie asked Ms Platt whether she had had sexual interaction with any underage persons and whether she would be willing to train a young girl to have sex if he could find one. Their conversation ultimately developed into a plan where Mr Davie would find a female child for Ms Platt to “seduce” and “train” for sexual purposes including for “renting” out to clients and for sexually offending against the child themselves.

[5] On 18 May 2017, Ms R initiated a text message conversation with Mr Davie. At the time the 10-year old victim, V1, was staying with Ms R while V1’s usual caregiver was in hospital. Ms R is V1’s grandmother.

[6] Within moments of the conversation starting, Mr Davie asked Ms R whether she knew any young persons who were available for sex. This led to Mr Davie asking
Ms R whether she had nude photos of her granddaughter. Ms R ultimately sent four

naked images of V1 to Mr Davie in exchange for a $40 mobile phone “top-up”. V1’s

4 Films, Videos…

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 [2018] NZHC 2766
Case: [2018] NZHC 2766
Decision Date: 25 October 2018

CaseChat Overview and Summary

In this case, Ms R appealed her sentence of three years and three months’ imprisonment imposed by Judge Kelly in the District Court at Wellington, after she pleaded guilty to charges of dealing in a person under 18 for sexual exploitation, publishing an intimate visual recording, and possessing an objectionable publication. Ms R argued that the sentence was manifestly excessive, claiming that the starting point adopted by Judge Kelly did not reflect the seriousness of her offending and was not comparable with the starting point for her co-offenders. The court considered the appeal, taking into account the gravity and scale of Ms R's offending, the remoteness of harm to the victim, and the parity with her co-offenders. Ultimately, the court found that the starting point adopted by Judge Kelly was within range and did not constitute an error. Therefore, the appeal against sentence was dismissed.

Orders