R v Thompson - [2021] NZHC 3452

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2019-092-002585

[2021] NZHC 3452

THE QUEEN

v

JOHNATHAN BARRY THOMPSON

Hearing: 14 December 2021

Appearances:

S A Norrie K F Karpik for the Crown D R F Gardiner for the Defendant

Judgment:

14 December 2021

SENTENCING NOTES OF VAN BOHEMEN J

Solicitors:
Crown Solicitor, (Kayes Fletcher Walker) Auckland Daniel Gardiner, Barrister, Auckland

R v THOMPSON (Sentencing Notes) [2021] NZHC 3452 [14 December 2021]

Introduction

[1] Mr Thompson, you appear for sentence today having pleaded guilty to one charge of doing an indecent act on a nine year old child in 2014 or 2015,1 and two charges of indecent assault of a 17 year old young woman in 2017.2

[2] The first charge carries a maximum penalty of 10 years’ imprisonment. The indecent assault charges each carry a maximum penalty of seven years’ imprisonment.

[3] These charges were laid on 30 October 2019. Your guilty pleas were entered on 20 November 2020.

[4] Both victims are part of your whānau. You are a first cousin of the mothers of each victim. Your partner at the time is an aunt of the victims so you were also their uncle.

[5] You are already serving a sentence of seven years and two months’ imprisonment, having pleaded guilty to sexual violation by rape of a 26-year old woman who was also part of your whanau. That offending took place in 2018.

[6] Gordon J sentenced you to your current sentence in February 2020 and imposed a minimum period of imprisonment of 60 per cent of that sentence.3 That is, four years and four months. That sentence was imposed before the offending on which you are being sentenced today had come to light.

[7] Because of your history of sexual offending, which extends well beyond the offending on which you are being sentenced today and for which you are currently sentenced, reports from two health assessors have been obtained in accordance with s 88 of the Sentencing Act 2002 in order that the Court can consider whether a sentence of preventive detention should be imposed.

1      Crimes Act 1961, s 132(3).
2      Crimes Act, s 135.
3      R v Thompson [2020] NZHC 195.

[8] When sentencing you last year, Gordon J found, by a fine margin, that a sentence of preventive detention was not necessary for the protection of the community, provided you undertook the appropriate programmes to address your sexual offending.4

[9] Ms Norrie for the Crown submits that, in the light of this current offending and further information that has been obtained about your previous participation in treatment programmes, that a sentence of preventive detention should be imposed with a minimum period of imprisonment of five years.

[10] Your counsel, Mr Gardiner, submits that a sentence of preventive detention should not be imposed because you have the motivation to address and resolve matters that contribute to your sexual offending and have not had…

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 Thompson

Details

AGLC: R v Thompson [2021] NZHC 3452
Case: [2021] NZHC 3452
Decision Date: 14 December 2021

CaseChat Overview and Summary

Johnathan Barry Thompson has been sentenced for doing an indecent act on a child and two charges of indecent assault. The court found that the appropriate starting point for the sentence should be two years and three months’ imprisonment due to the aggravating features of the offending. The court considered the cumulative uplift to the current sentence and found that a sentence of one year and one month’s imprisonment on each charge was appropriate. The court also considered whether to impose a sentence of preventive detention but found that it was not necessary to protect the community. The court recommended that Thompson be placed on an intensive programme for sex offenders and that an extended supervision order be considered before his release. The sentences are to be served concurrently with each other, but cumulatively with the sentence Thompson is currently serving, resulting in a cumulative sentence of eight years and three months’ imprisonment.

Orders