S v R - [2017] NZHC 205

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

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-141

CRI-2016-409-142 [2017] NZHC 205

BETWEEN
S

Appellant

AND

THE QUEEN Respondent

Hearing: 14 February 2017

Appearances:

M Starling for the Appellant
N Pointer for the Respondent

Judgment:

20 February 2017

JUDGMENT OF MANDER J

[1] The appellant, S, was sentenced to 10 years and six months imprisonment on charges of sexual offending against his 10 year old daughter and unrelated charges of violence relating to his former partner.1 He appeals against that sentence on the basis the sentencing Court erred by failing to afford sufficient credit to him for his self- reporting of the sexual offending.

Background

[2] S pleaded guilty to a representative charge of rape, four charges of unlawful sexual connection with a female under 12 years, and a further charge of raping a female under 12 years. This offending occurred over a period of some 11 months when the child was in S’s care. It involved three specific rapes when he had
unprotected sex with his daughter, and four occasions when he had unlawful

1 R v S [2016] NZDC 22644.

connection which involved instances of simultaneous oral sex on each other. This very serious offending involved a gross breach of trust against a very young and particularly vulnerable girl. Unsurprisingly, the impact on the child has been profound.

[3] The domestic violence charges relate to two separate events where S assaulted and threatened his former partner. The violence included placing the victim in a stranglehold and damaging property.

District Court sentencing decision

[4] Judge Garland considered the sexual offending fell within Band 3 of the guideline judgment of the Court of Appeal’s decision in R v AM.2 The Judge took an uncontested starting point of 15 years imprisonment. It was accepted that S was entitled to a full discount for his early guilty plea in relation to the sexual offences.

[5] During the course of the sentencing hearing S’s counsel advised that his client had disclosed this offending himself. The Crown was unaware of that circumstance, however, after making inquiries it was confirmed to the Court that S had self-reported his sexual offending. Judge Garland acknowledged that this demonstrated special regret and remorse which justified a further discount of five per cent. An overall discount of 30 per cent or five years imprisonment was applied, resulting in an effective end sentence for the lead rape charge of 10 years. Concurrent sentences of eight years were imposed on each of the charges of unlawful sexual connection.

[6] In relation to charges of male assaults female, intentional damage, threatening behaviour, assault, and threatening to kill, a sentence of six months imprisonment was imposed cumulatively. The Crown had initially sought the imposition of a minimum term of imprisonment, however, because S self-reported his offending it acknowledged that a minimum term was not necessary. Judge Garland, while initially minded…

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 S v R

Details

AGLC: S v R [2017] NZHC 205
Case: [2017] NZHC 205
Decision Date: 20 February 2017

CaseChat Overview and Summary

In the High Court of New Zealand, S appeals against his sentence of 10 years and 6 months imprisonment, imposed following his conviction on charges of sexual offending against his 10-year-old daughter and unrelated charges of violence relating to his former partner. The appeal focuses on the sufficiency of the credit afforded to S for his self-reporting of the sexual offending. S contends that the sentencing court erred by not providing sufficient credit for his self-reporting, which demonstrated his remorse and allowed his victim to receive help without having to report the abuse herself.

The primary issue before the Court was whether the sentencing judge appropriately assessed and credited S’s self-reporting of his sexual offending. S argued that his disclosure of the abuse against his daughter, in the most direct manner, indicated his remorse and justified a 50% credit from the starting point of 15 years imprisonment. The Crown argued that the credit afforded was appropriate.

The Court considered the circumstances of the disclosure and the legal principles applicable to self-reporting as a mitigating factor. The Court acknowledged the significant benefit to the victims of sexual abuse and the community in promoting self-reporting by sex offenders. The Court noted that S’s self-reporting was not influenced by any external factors and likely would not have come to light otherwise. The Court found that S should have been afforded a 20% deduction from the starting point of 15 years imprisonment to recognise that his sexual offending was only detected as a result of his self-reporting. The Court set aside the original sentence and imposed a sentence of nine years and six months imprisonment.

The Court allowed the appeal, substituting the original sentence with a sentence of nine years and six months imprisonment. The individual sentences for the charges of sexual violation by unlawful sexual connection remain unchanged, as do the sentences for the domestic violence charges and the protection order imposed in favour of S’s ex-partner. The Court also noted that an order was made for final name suppression of S and suppression of his address and any identifying particulars to protect the identity of his daughter.

Orders