Raea v Police - [2017] NZHC 800

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2017-404-000085

[2017] NZHC 800

IN THE MATTER OF an appeal against sentence

BETWEEN

JUNIOR POKOINA RAEA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 26 April 2017

Counsel:

S N B Wimsett for the Appellant

A L McConachy for the Respondent

Judgment:

26 April 2017

(ORAL) JUDGMENT OF EDWARDS J

Counsel: S N B Wimsett, Auckland

Solicitors: Meredith Connell, Auckland

RAEA v POLICE [2017] NZHC 800 [26 April 2017]

Introduction

[1]The appellant pleaded guilty to one charge of indecent assault and was

sentenced to 20 months’ imprisonment on 15 March 2017.1

[2] The appellant appeals this sentence on the grounds that the starting point was too high; the uplift was excessive; and the Judge erred in declining to impose a sentence of home detention.

The offending

[3] The victim had known the appellant since she was a little girl through church and considered him to be family. She voluntarily moved to stay with the appellant after she had a heated argument with her sister at her home address. The victim was 17 years old at the time of the offending.

[4] Shortly after she moved in to stay with the appellant, he began to make inappropriate comments towards her when she was alone. He would tell her that people were saying he needed a wife, and that he wanted to marry her and have sex with her. This continued over several months.

[5] The index offending took place during November 2015. After returning from clothes shopping with her family, the victim tried on some clothes and asked the appellant what he thought of her new outfit. The appellant grabbed the victim by the waist, and pushed her back into the bedroom. He then moved his hands to her breasts and groped her breasts aggressively. His mouth was on her face and as she tried to turn away, he grabbed the side of her face and held it still as he continuously tried to force his tongue into her mouth. The appellant then moved his hands down to the victim’s bottom and stroked it up and down with his hands. He moved one hand from her bottom to her vagina and moved his hand between those two areas several times in a stroking and tapping manner over the top of her skirt. While he was doing this he made comments to the victim that he “wanted to get into her”. To get away from the appellant, the victim told him that she needed to go to the

1 R v Raea [2017] NZDC 5392.

bathroom and she locked the door and stayed there for a while. When she came out, there was no further mention of what had taken place.

Personal circumstances

[6] The appellant is a 62 year old male who has a number of convictions from 1994 and earlier, but nothing since. Those convictions include two convictions for unlawful sexual connection with a female over 16, two convictions for…

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 Raea v Police

Details

AGLC: Raea v Police [2017] NZHC 800
Case: [2017] NZHC 800
Decision Date: 26 April 2017

CaseChat Overview and Summary

Junior Pokoina Raea appeals against a sentence of 20 months’ imprisonment imposed for one charge of indecent assault. The offending occurred when the appellant, a 62-year-old male, made inappropriate comments towards a 17-year-old victim over a period of months and then sexually assaulted her. The appellant has a lengthy criminal history of sexual offending against children and young females. The appellant submits that the starting point was too high, the uplift for previous convictions was excessive, and the Judge erred in declining to impose a sentence of home detention.

The starting point of 20 months was within the applicable range, however, the uplift for previous convictions was excessive. The appellant did not have any convictions since 1994, and the uplift of four months was inappropriate given the length of time since the previous offending. An uplift in the order of two months was more appropriate. The court also considered that a sentence of home detention was not suitable in this case as the offending was serious and the appellant showed a lack of remorse and insight into his offending. The court declined to commute the sentence of imprisonment to one of home detention.

The appeal is allowed. The sentence of 20 months’ imprisonment is quashed and substituted with a sentence of 18 months’ imprisonment. The application to commute the sentence to one of home detention is declined.

Orders