R v Winterburn - [2014] NZHC 2313

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2013-069-0397 [2014] NZHC 2313

THE QUEEN

v

ROBERT WINTERBURN

Counsel:
J E Rielly for Crown

A J S Snell for Prisoner

Sentencing:

18 September 2014

SENTENCING NOTES OF WILLIAMS J

Charges

[1] Mr Winterburn – tena koe. Please stand.

[2] You appear for sentencing having been found guilty by a jury of nine charges. The first group of charges relate to your victim, S with whom you had a brief relationship. Those are:

(a) male assaults female; (b) threatening to kill;
(c) sexual violation by unlawful sexual connection; and

(d) sexual violation by rape.

R v WINTERBURN (SENTENCING) [2014] NZHC 2313 [18 September 2014]

[3]      The second group of charges relate to your drug dealing. They include: (a)   unlawful possession of a firearm;
(b)      possession of cannabis for supply; (c)   offering to supply cannabis; and
(d)      offering to supply methamphetamine.

[4] The third category relates to the single offence of attempting to pervert the course of justice.

[5] You plead guilty to the second drug-related group of charges at the beginning of your trial. The remaining counts went to trial and you were found guilty of them, although you were acquitted of eight other counts, I understand.

[6] His Honour Judge Rea in the District Court declined jurisdiction in sentencing on the basis (I presume) that a sentence of preventive detention was possible and was sought by the Crown.

[7] The learned Judge approved a Crown summary of facts which I read through

– with one exception that I will mention as I go. You, as the Crown says, maintain your innocence in respect of the counts for which you plead not guilty, and you maintain the position that those verdicts were wrong. I of course must sentence you on the basis of those verdicts as if they are right, we are both bound by that according to law.

The facts

[8] You met S in Rotorua in February last year and began a relationship. By April last year you were in Waipukurau where you are from. The 17th of April was your birthday. Following a birthday dinner at a family address you and S smoked some methamphetamine. It seems you ended up driving around central Hawkes Bay

and Hastings that day and the next visiting people and ultimately going to the urupa where your father is buried.

[9] During the drive you hit S. It is possible you also struck her with a firearm but Judge Rea specifically notes that he is unsure whether the jury accepted that allegation. So I am going to sentence you on the basis that there was no firearm involved in the male assaults female charge and that you struck her with your hands.

[10] Early on the morning of 18 April 2013, the day after your birthday, you headed to the urupa. 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 Winterburn

Details

AGLC: R v Winterburn [2014] NZHC 2313
Case: [2014] NZHC 2313
Decision Date: 18 September 2014

CaseChat Overview and Summary

In the case of R v Winterburn, the defendant, Robert Winterburn, was sentenced for multiple charges including sexual assault, drug dealing, and attempting to pervert the course of justice. The court was required to decide the appropriate sentence for each charge, taking into account the severity of the crimes, Winterburn's history of violence and drug abuse, and the potential for rehabilitation. The court considered the starting points for each group of charges, applying relevant sentencing principles and guidelines. It also deliberated on the necessity of a preventive detention sentence, evaluating the risk Winterburn posed to the community if released after serving a finite sentence. Ultimately, the court decided against preventive detention, reasoning that while Winterburn had a history of dangerous and violent behaviour, there was a possibility that he could reform with proper treatment and support. The final sentence was determined to be 11 years and 4 months imprisonment, with specific terms for each charge and a minimum period of imprisonment set at two-thirds of the lead offence.

Orders