R v Thompson - [2020] NZHC 195

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-004-9572

[2020] NZHC 195

THE QUEEN

v

JOHNATHON BARRY THOMPSON

Hearing: 18 February 2020

Appearances:

H Steele and K Guilford for the Crown J Corby for the Defendant

Sentencing:

18 February 2020

SENTENCING NOTES OF GORDON J

Solicitors: Crown Solicitor, Auckland Counsel: J Corby, Auckland

R v THOMPSON [2020] NZHC 195 [18 February 2020]

Introduction

[1] Mr Thompson you appear today for sentence having pleaded guilty to one charge of sexual violation by rape.1

[2]Sexual violation carries a maximum penalty of 20 years’ imprisonment.

[3] Having regard to your history of offending, at the time you entered your guilty plea the Crown was seeking a sentence of preventive detention. The Court accordingly ordered reports from two health assessors under s 88 of the Sentencing Act 2002 (the Act).

[4] The Crown’s position as recorded in its written submissions, is that it may be appropriate to sentence you to a sentence of preventive detention. If the Court does impose a sentence of preventive detention, the Crown submits that a minimum period of imprisonment of six years would be appropriate.

[5] Mr Corby, appearing on your behalf, submits that the presumption in favour of a lengthy finite term of imprisonment is not displaced, taking into account the possibility of an extended supervision order at the end of a finite sentence. A sentence of preventive detention cannot therefore be justified.

[6]I will begin by summarising the facts of the offending.

Background

[7] The victim is a 26-year-old woman who is related to you. At the time you were 45 years of age. On 29 September 2018, you and the victim were at a family function. You were both consuming alcohol. You also say that you had smoked cannabis and methamphetamine that day, the latter, you say, for the first time. After the family function you drove the victim and two other family members to a bar in central Auckland in a van. During the journey, the victim fell asleep in one of the backseats of the van. She was lying down. When you arrived at your destination, you parked

1 Crimes Act 1961, s 128B.

the vehicle and left with the two other family members. The victim was left asleep in the back of the van.

[8] You subsequently returned alone and entered the back of the van where the victim was sleeping. You removed her leggings and underwear by pulling them down to around her knees. You inserted your penis into her vagina. The victim felt some pain and awoke to find you on top of her, engaging in sexual intercourse. She started to scream and yelled at you to get off her. You placed your hand over her mouth to stop her screaming and to avoid attracting attention. The victim tried to push you off her but was initially prevented from doing so by your size.

[9] She was eventually able to remove…

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 [2020] NZHC 195
Case: [2020] NZHC 195
Decision Date: 18 February 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Gordon J sentenced Johnathon Barry Thompson for a charge of sexual violation by rape. Thompson had pleaded guilty to raping a 26-year-old woman who was asleep in the back of a van. The court had to decide on an appropriate sentence considering the severity of the crime, Thompson’s criminal history, and his potential risk to reoffend. The court also had to decide whether to impose a sentence of preventive detention, given Thompson's history of sexual offenses and the risk he posed to the community.

The court first determined an appropriate finite sentence by setting a starting point for the sentence, adjusting it based on personal circumstances, and considering a discount for Thompson's guilty plea. The court then considered whether to impose a sentence of preventive detention, weighing the risk Thompson posed to the community against the principle that a lengthy determinate sentence is preferable if it provides adequate protection for society. The court concluded that a sentence of preventive detention was not necessary for the protection of the community, provided Thompson undertook appropriate programs to address his sexual offending.

The court sentenced Thompson to seven years and two months’ imprisonment on the charge of sexual violation by rape, requiring him to serve 60 per cent of that sentence before being eligible for parole. The court also ordered Thompson to pay $5,000 in reparations to the victim.

Orders