R v Weenink - [2012] NZHC 3224

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-070-005584 [2012] NZHC 3224

THE QUEEN

v

SAMUEL OWEN WEENINK PAUL MCMASTER DYLAN JOHN O'NEILL

RICHARD JAMES CAMERON MORTON COREY CLINTON OWENS

Hearing: 30 November 2012

Counsel: G Hollister-Jones and J Rhodes for the Crown PG Mabey QC and A Hopkinson for Weenink CG Tuck for McMaster
CR Horsley for O'Neill FCK Wood for Morton AC Balme for Owens

Judgment: 30 November 2012

SENTENCING REMARKS OF ASHER J

Solicitors/Counsel:
Crown Solicitor, DX HP 40041, Tauranga 3141.
Email: h.wrigley@rhjl.co.nz and g.hollister-Jones@rhjl.co.nz and j.rhodes@rhjl.co.nz
PG Mabey QC, DX HP 40075, Tauranga 3141. Email: pgmabey@xtra.co.nz and ahopkinson@clmlaw.co.nz
CG Tuck, PO Box 13110, Tauranga 3141. Email: cgtuck@xtra.co.nz
Adams & Horsley, DX HP 40012, Tauranga 3141. Email: craig@adamshorsley.co.nz
Davys Burton, DX JP 30001, Rotorua. Email: fraser.wood@davysburton.co.nz
AC Balme, PO Box 13079, Tauranga 3141. Email: admin@balmelaw.co.nz

R V WEENINK HC ROT CRI-2011-070-005584 [30 November 2012]

[1] Samuel Weenink, Paul McMaster, Dylan O’Neill, Richard Morton and Corey Owens, you appear today for sentence following verdicts of guilty delivered following your trial on rape counts on 19 October 2012. I record that I have already delivered a three strikes warning.

[2] You have all been found guilty on four counts of rape. With the exception of Mr Morton, that has been on the basis that you were guilty as a principal on one of the counts and as a party on the others. You, Mr Morton, have been found guilty of being a party to rape on four counts, but have not been found guilty of rape as a principal as that count was withdrawn.

Facts

[3] I set out briefly the facts. On the Sunday in question the five of you had been exchanging texts and talking about putting a woman on the block. I will refer later to what that means. Three of the five of you knew the complainant. You had contacted the victim and asked her around for a night of drinking and socialising. Some of you had gone to pick her up. She came willingly and on arrival you started drinking. This was at about 8 o’clock on the Sunday evening. Over the next few hours you all drank. The victim consumed a good deal of alcohol and consumed some cannabis. She became drunk.

[4] Sometime around the 10 o’clock mark she went outside on the deck to have a cigarette. There had been no discussion about sex. As she walked back into the room, one of you grabbed her from behind and pulled down her top off exposing her breasts. When she tried to replace her top her arms were pinned behind her and all of her clothes were removed. She was forced onto a couch in the living room. She initially struggled and cried out in protest. She eventually stopped because she was hurting herself by fighting. First you, Mr McMaster, and then the others, with the exception of Mr Morton, took turns in raping her by having vaginal intercourse with her.…

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 Weenink

Details

AGLC: R v Weenink [2012] NZHC 3224
Case: [2012] NZHC 3224
Decision Date: 30 November 2012

CaseChat Overview and Summary

In this case, Samuel Weenink, Paul McMaster, Dylan O'Neill, Richard Morton, and Corey Owens were convicted of multiple counts of rape and were sentenced by Asher J in the High Court of New Zealand. The legal issues the court was required to decide included the appropriate sentencing band, culpability of the offenders, and whether a minimum term of imprisonment should be imposed. The court assessed the culpability of the offenders based on factors such as the scale of the offending, the harm to the victim, and the number of offenders involved. The court concluded that the offending fell within band three, which carries a starting point of 12 to 18 years' imprisonment. The court also considered personal factors such as the offenders' youth and good character, and applied a 15% discount to the starting point. The court decided not to impose a minimum term of imprisonment, as it believed the long sentence of imprisonment would adequately denounce the offenders' conduct and deter them from reoffending. The final orders of the court were that Samuel Weenink was sentenced to 12 years and 9 months' imprisonment on count 1, and concurrent sentences of 11 years and 4 months' imprisonment on the other counts; Paul McMaster was sentenced to 13 years' imprisonment on count 2, and concurrent sentences of 11 years and 4 months' imprisonment on the other counts; Dylan O'Neill was sentenced to 12 years and 9 months' imprisonment on count 3, and concurrent sentences of 11 years and 4 months' imprisonment on the other counts; Richard Morton was sentenced to 11 years and 4 months' imprisonment on each count, to be served concurrently; and Corey Owens was sentenced to 12 years and 9 months' imprisonment on count 5, and concurrent sentences of 11 years and 4 months' imprisonment on the other counts.

Orders