R v WH - [2023] NZHC 2870

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 203 CRIMINAL PROCEDURE ACT 2011. SEE

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2021-019-3398

[2023] NZHC 2870

THE KING

v

WH

Hearing: 13 October 2023

Appearances:

R Mann for the Crown R Boot for the defendant

Date:

13 October 2023

SENTENCING NOTES OF CAMPBELL J

R v WH [2023] NZHC 2870 [13 October 2023]

Introduction

[1] WH, you are for sentence today for serious sexual and violent offending. After a trial in this Court, a jury found you guilty of six charges of indecency with a girl under 12,1 two charges of indecency with a girl between 12 and 16,2 a charge of sexual violation by unlawful sexual connection,3 a charge of indecent assault,4 a further charge of sexual violation by unlawful sexual connection,5 and a charge of sexual violation by rape.6 You had earlier pleaded guilty to a representative charge of male assaults female.7

[2] There are four victims of your offending. Each is a niece of yours. I acknowledge each of them, particularly S, who is here today. I will say more about how your offending has affected your victims once I have described your offending.

[3] You are already a serving prisoner, having been sentenced to 15 years’ imprisonment by Downs J in October 2020 for even more serious sexual offending. In that case there were two victims. One was your daughter. The other was one of your nieces who is also a victim of the offending for which I am sentencing you today.

[4] In deciding upon your sentence today, I have to take into account that earlier sentence and that other offending.

Facts

[5] I am going to start by briefly describing the offending for which I am sentencing you today.

1      Crimes Act 1961, s 133(1)(a). Maximum penalty: 10 years’ imprisonment. This section was repealed 20 May 2005.
2      Crimes Act 1961, s 134(2)(a). Maximum penalty: seven years’ imprisonment. This section was amended 20 May 2005, the offence is now captured by s 134(3).
3      Crimes Act 1961, ss 128(1)(b) and 128B. Maximum penalty: 20 years’ imprisonment. Both sections were amended 20 May 2005, although the offence remains captured by the amended sections.
4      Crimes Act 1961, s 135. Maximum penalty: 10 years’ imprisonment.
5      Crimes Act 1961, ss 128(1)(b) and 128B. Maximum penalty: 20 years’ imprisonment.
6      Crimes Act 1961, ss 128(1)(a) and 128B. Maximum penalty: 20 years’ imprisonment.
7      Crimes Act 1961, s 194. Maximum penalty: two years’ imprisonment.

[6] You committed indecencies against your niece R on several occasions from about 1993 to 2000. You did so in her bed or called her over to where you slept. You simulated sexual intercourse with her or touched her genital area with your hand. You…

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 WH

Details

AGLC: R v WH [2023] NZHC 2870
Case: [2023] NZHC 2870
Decision Date: 13 October 2023

CaseChat Overview and Summary

The High Court of New Zealand, Hamilton Registry, was tasked with sentencing WH on charges of serious sexual and violent offenses against his nieces. The defendant was found guilty of multiple charges including indecency with a child under 12, indecency with a child between 12 and 16, sexual violation by unlawful sexual connection, indecent assault, and rape. WH had already been serving a 15-year sentence for similar offenses involving his daughter and another niece. The court had to determine the appropriate sentence for the new offenses, taking into account the prior sentence and the severity of the current offenses. The primary legal issue was to decide on the appropriate sentence that would reflect the gravity of WH's offenses while considering his background and the need for deterrence and protection of the community.

The court first calculated a starting point for the sentence by considering the totality of WH's offenses. It adopted a starting point of 25 years, reflecting the gravity of the current offenses in addition to the prior sentence. The court then made allowances for WH's guilty plea and his background, which included severe childhood abuse and neglect. These factors reduced the starting point to 19 years and three months. The court also considered the possibility of imposing a minimum period of imprisonment but decided against it, as the accumulated minimum period would not exceed ten years as per the Sentencing Act. Regarding preventive detention, the court found that while WH's risk of re-offending was elevated, it was not likely that he would commit another sexual offense by the time of his potential release in 2039, given his engagement in rehabilitation programs and the passage of time. Therefore, the court decided not to impose preventive detention. Finally, the court imposed protection orders for the victims and sentenced WH to concurrent terms of imprisonment for the current offenses, adding four years and three months to his existing sentence, making his total effective sentence 19 years and three months.

The court's final orders included sentences of imprisonment for the various charges, with specific terms for each offense, and protection orders for the victims to prevent WH from contacting them upon release. The sentences for the current offenses were to run concurrently with each other but cumulatively with the prior sentence, resulting in a total effective sentence of 19 years and three months.

Orders