R v Utatao - [2018] NZHC 2044

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-004-2501

[2018] NZHC 2044

THE QUEEN

v

SAMUEL MCCARTHY UTATAO

Hearing: 10 August 2018

Appearances:

K A Lummis and D S Houghton for Crown

M J Dyhrberg QC and T Spencer for Defendant

Judgment:

10 August 2018

SENTENCING REMARKS OF LANG J

R v UTATAO [2018] NZHC 2044 [10 August 2018]

[1] Mr Utatao was found guilty at trial on numerous charges relating to sexual and violent conduct against two complainants. At the conclusion of the trial and following delivery of the jury’s verdicts he did not wish to remain in the courtroom whilst convictions were entered against him. For that reason I postponed the entry of convictions until sentencing. As a consequence, I also postponed the required warning under the so called “three strikes” legislation.

[2] Mr Utatao has been convicted on three counts of rape. Given those convictions a three strike warning is required. This morning, however, he has indicated firmly, both to his counsel and to the security staff, that he is not prepared to leave his cell. He has signed a waiver in the following terms:

My name is Samuel McCarthy Utatao

D.O.B 12/01/59/

I am at the Auckland High Court today for sentencing, following a jury trial. I do not wish to attend my sentencing hearing. I consent to sentencing going ahead in my absence. I hear from the custody people in the cells at the Auck High Court that the court says I need to go up to the courtroom, to hear the judge read out to me a strike warning. I am going to stay in the cells, and the judge can read it out in my absence. My lawyer Marie Dyberg [sic] QC can relay it to me. I consent to the strike warning being read out in Marie Dyberg’s absence.

The note is then signed and dated by Mr Utatao.

[3] I was initially concerned at the prospect of proceeding in circumstances where Mr Utatao was absent from the courtroom. Ms Lummis referred me to s 123 of the Criminal Procedure Act 2011. This prohibits the Court from sentencing an offender charged with a category 2, 3 or 4 offence in his or her absence. The section also provides that where a defendant is absent, the Court may issue a warrant for his or her arrest.

[4] Upon reflection, I do not consider Mr Utatao is absent. He is present in the Court precincts and, if necessary, I could have him brought by force to the courtroom. Having regard to the views he has expressed, however, I am not prepared to do that. I am prepared to accede to his wishes and sentence him in his absence from the courtroom, but in his presence within the court percincts. I will also direct that he

remains in the Court precincts until such time as the written three strikes warning has been given to him,…

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 Utatao

Details

AGLC: R v Utatao [2018] NZHC 2044
Case: [2018] NZHC 2044
Decision Date: 10 August 2018

CaseChat Overview and Summary

The case of R v Utatao involves the sentencing of the defendant, Samuel McCarthy Utatao, who was found guilty of multiple charges relating to sexual and violent conduct against two complainants. The High Court of New Zealand, Auckland Registry, presided over the case, with the sentencing remarks delivered by Justice Lang on August 10, 2018. The primary legal issue before the court was whether to impose a finite sentence or an indeterminate sentence of preventive detention on Utatao, given his history of serious sexual and violent offending. The court considered various factors, including Utatao's history of offending, the seriousness of harm caused by his actions, his failure to address the causes of his offending, and the preference for a lengthy determinate sentence if it provided adequate protection for society.

After thorough consideration, the court determined that Utatao presented a high risk of serious sexual offending upon his release from prison unless significant steps were taken to address the causes of his offending. The court found that Utatao had established a pattern of serious offending, had caused significant harm to the community, and had failed to address the causes of his offending. Additionally, the court noted that a lengthy determinate sentence was preferable if it provided adequate protection for society. Based on these factors, the court decided to impose a sentence of preventive detention on Utatao, with a minimum term of six years imprisonment before he would be eligible to apply for parole. This decision aimed to protect the community from the ongoing risk posed by Utatao and to ensure that he addressed the causes of his offending before being released.

Orders