R v Wells - [2013] NZHC 1645

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2009-054-3472 [2013] NZHC 1645

THE QUEEN

v

TONY RUSSELL WELLS

Hearing: 2 July 2013

Counsel: B D Vanderkolk for the Crown
S N Hewson for the Defendant

Sentencing Notes 2 July 2013

SENTENCING NOTES OF MACKENZIE J

[1] Tony Russell Wells you appear for sentencing today having been convicted following trial in the District Court at Palmerston North in December 2012 on one charge of sexual violation by rape1 and one charge of sexual violation by unlawful
sexual connection.2 You initially faced four charges of sexual offending against two

complainants. You were found guilty on the two charges in relation to one complainant and not guilty on the other two charges relating to the second complainant.

[2] You are here for sentencing in this Court because the District Court declined jurisdiction so that a sentence of preventive detention could be considered. I tell you at the outset that I am not going to impose that sentence. I will impose a finite
sentence.

1 Crimes Act 1961, ss 128(1)(a) and 128B.
2 Crimes Act 1961, ss 128(1)(b) and 128B.

R v WELLS [2013] NZHC 1645 [2 July 2013]

[3] The facts are that on 19 March 2003, the victim had travelled to Palmerston North. She had understood that an acquaintance was going to drive her home to Foxton. She waited for her until about 10.30 pm. When she did not arrive the complainant could not find accommodation and so at about 3 am she was sitting on a park bench in The Square.

[4] You walked past her and asked her if she was alright. She told you that she had nowhere to go. You said she could stay at your mother’s place. You said you would go and get your van. As the victim walked towards the place you said you would pick her up, she began to have second thoughts about going with you. However, she got into your van, at about 3.15 am.

[5] You drove out of Palmerston North city and onto a country road. By this time the victim was increasingly concerned. You stopped the van and told the victim that she could sleep with you and have sex. The victim told you she did not want to. She felt trapped and unable to get away from you because of the location. You removed her clothing and you did not heed her pleas to stop.

[6] You used a condom and forced the victim into the back of the van. She tried to push you away but you held her down. You forced the victim’s legs apart and raped her, causing her pain. You then told the victim to get on all fours. The victim refused, but you pushed her down onto one side. You then put your penis into the victim’s anus, causing her further pain. You removed the condom you were wearing and asked the victim to perform oral sex on you. She…

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 Wells

Details

AGLC: R v Wells [2013] NZHC 1645
Case: [2013] NZHC 1645
Decision Date: 2 July 2013

CaseChat Overview and Summary

Tony Russell Wells was sentenced in the High Court of New Zealand for charges of sexual violation by rape and sexual violation by unlawful sexual connection. The court heard that Wells had raped and sexually assaulted a victim in 2003 after offering her a ride. This case came before the High Court because the District Court declined jurisdiction for a sentence of preventive detention. The legal issues before the court included whether a sentence of preventive detention was appropriate and, if not, what an appropriate finite sentence would be. The court considered the nature and seriousness of the offending, the risk of reoffending, and Wells' motivation to rehabilitate. Ultimately, the court decided that a sentence of preventive detention was not necessary. The court determined that a finite sentence of eight years and six months imprisonment, to be served concurrently, was appropriate, reflecting the totality of the offending and the circumstances of the case. The court also decided against imposing a minimum period of imprisonment, allowing the Parole Board to consider Wells' circumstances when he becomes eligible for parole.

The court's reasoning was based on several factors, including the lack of a pattern of serious offending following imprisonment, the seriousness of the harm to the community, and the absence of efforts to address the causes of the offending. The court found that Wells' risk of reoffending was medium to low, though it acknowledged that this risk could be mitigated with appropriate treatment. The court also noted that Wells had not had any offence-specific psychological intervention, primarily because his assessed risk had consistently been below the threshold for such intervention. The court allowed discounts from the starting sentence to reflect the additional period Wells served due to the charges and the time he spent on electronically monitored bail after release. The court concluded that a finite sentence provided adequate protection for society and was a preferable alternative to preventive detention.

Orders