R v VH - [2013] NZHC 2463

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-088-001623 [2013] NZHC 2463

THE QUEEN

v

VH

Charges:
Plea:

Rape x1; Sexual violation by unlawful sexual connection x6;

assault on a child x2

Guilty

Appearances:

M B Smith for Crown
S K Ellis for Prisoner

Sentenced:

20 September 2013

SENTENCING NOTES OF VENNING J

Solicitors: Crown Solicitor, Whangarei
Copy to: S K Ellis, Whangarei

R v VH [2013] NZHC 2463 [20 September 2013]

[1] VH, you have pleaded guilty to and are for sentence on six counts of sexual violation by unlawful sexual connection, one count of rape and two counts of assault on a child. There are two indictments before the Court. On the first indictment the Crown has offered no evidence in relation to counts 1, 3, 5, 8, 10 and 12. You are discharged in relation to those counts.

[2] The maximum sentence for the charges of sexual violation by unlawful sexual connection and rape is 20 years’ imprisonment. That is the sentence that applied at the time of your offending. After you entered the guilty pleas you were convicted and given the appropriate warning under the three strikes regime.

[3] Your sexual offending was against two victims. Both are related to you. The first victim is now 30 years old. In 1993 or 1994 when she was about 12 years old she went to live with you and your wife. During the short time she was living with you, you offended against her sexually.

[4] The first incident occurred while she was asleep in the lounge area with her cousins. She felt you touching her legs. You rubbed her breasts, kissed her and then inserted your fingers into her vagina. You shushed her when she objected.

[5] The second incident occurred a few days later when the victim was sleeping on a bottom bunk. Again, you went to her, took her underpants off and inserted your fingers inside her vagina.

[6] The count of rape occurred when the victim was again in her bedroom. You laid her down on the floor, removed her pants and underwear. You then inserted your fingers into her vagina, got on to your knees, rubbed your penis up and down her vagina and then put your penis in her vagina. While raping her you put your hand over her mouth telling her to shush. When you were finished you told her not to tell anyone.

[7] The next two incidents of unlawful sexual connection happened when the victim was in the washhouse. You came in, and closed the door. You made her lie

down on the floor and took her clothes off. You opened her legs and began rubbing her vagina. You put your head between her legs and began licking and sucking her vagina. You performed oral sex on her, before inserting your fingers into her vagina again. At this time,…

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 VH

Details

AGLC: R v VH [2013] NZHC 2463
Case: [2013] NZHC 2463
Decision Date: 20 September 2013

CaseChat Overview and Summary

VH has been convicted of multiple counts of sexual violation by unlawful sexual connection, one count of rape and two counts of assault on a child, and sentenced to 11 years and 6 months imprisonment. The sentencing issues before the court were the starting point for the sentence and the calculation of the non-parole period. The court found that the starting point for sentencing was 14 years based on the seriousness of the offending, the vulnerability of the victims, and the breach of trust. The court then reduced the sentence by 15% for the defendant’s guilty plea, resulting in a sentence of 11 years and 6 months. The court imposed a non-parole period of 5 years and 9 months based on the need to hold the defendant accountable for the harm done and to denounce such conduct. The defendant was sentenced to 11 years and 6 months imprisonment for rape, 9 years imprisonment for unlawful sexual connection, and 3 months imprisonment for assault, to be served concurrently. The defendant must serve a minimum of 5 years and 9 months imprisonment.

Orders