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S v The the Queen

S v The the Queen

Case [2022] NZHC 164 11 February 2022

Discretionary Dismissal of Charges

Consecutive Offences

Discharge Without Conviction

Criminal Law

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ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT/COMPLAINANT PURSUANT TO SS 200 AND 201 CRIMINAL PROCEDURE ACT 2011. SEE PARAGRAPH [76]

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-485-89

[2022] NZHC 164

BETWEEN
MR S

Appellant

AND

THE QUEEN

Respondent

Hearing (by VMR): 3 February 2022

Counsel:

N Levy QC for the Appellant

R K Thomson for the Respondent

Judgment:

11 February 2022

JUDGMENT OF GWYN J

Introduction

[1]The appellant appeals against two decisions of the District Court:

(a)On 17 June 2021 to refuse the application for dismissal of charges for offending when the appellant was within the Youth Court’s jurisdiction (pursuant to s 322 of the Oranga Tamariki Act 1989).1

1 R v S [2021] NZDC 11439.

S v R [2022] NZHC 164 [11 February 2022]

(b)On 12 November 2021 on conviction and sentence of eight months and two weeks’ home detention.2

[2]On 12 November 2021 the appellant pleaded guilty to:

(a)one representative charge of indecent assault on a girl aged 12-16 for offences during the period 1 January 1980 to 2 August 1984;3 and

(b)one charge of incest relating to offending in December 1984.4

[3]The appellant was initially charged with:

(a)five charges of indecently assaulting a girl between 12 and 16 years of age pursuant to s 134(2)(a) of the Crimes Act 1961;

(b)one charge of sodomy pursuant to s 142(1)(a) of the Crimes Act 1961; and

(c)one charge of rape pursuant to s 128(1)(a) of the Crimes Act 1961.

Background

[4] Some of the facts remain disputed. What follows is a summary of the facts on the basis of which S pleaded guilty and was sentenced.

[5] S is now 56 years old. The victim, S’s sister, is two and three quarter years younger than S. The charges, laid in July 2020, relate to offending which occurred between 1 January 1980 and 31 December 1984, when S was 14 to 19 years old and the victim was 11 to 16 years old.

[6] The representative charge of indecent assault relates to four incidents, including instances of S touching the victim on her vagina; anal penetration of the

2      R v S [2021] NZDC 22276.
3      Crimes Act 1961, s 134(2)(a): maximum penalty of 7 years’ imprisonment. This is now s 134(3) and carries the same maximum penalty.
4      Section 130: maximum penalty of 10 years’ imprisonment.

victim by S; S performing oral sex on the victim; and S making the victim perform oral sex on him. The charge of incest relates to an incident in 1984 when S climbed into bed with the victim and began to digitally penetrate her vagina and climbed on top of her and penetrated her vagina with his penis.

Lower Court’s decisions

Judgment of 17 June 2021

[7] S made an application for dismissal of four charges of indecent assault and the charge of sodomy, pursuant to s 322 of the Oranga Tamariki Act, on the grounds…

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 The the Queen

Details

AGLC: S v The the Queen [2022] NZHC 164
Case: [2022] NZHC 164
Decision Date: 11 February 2022

CaseChat Overview and Summary

Mr S appeals against two decisions of the District Court. First, the refusal to dismiss charges of offending when the appellant was within the Youth Court’s jurisdiction. Second, the refusal to grant a discharge without conviction on the incest charge. The appellant was sentenced to eight months and two weeks’ home detention. The appeal was heard by Gwyn J in the High Court at Wellington. The central issue was whether there had been a miscarriage of justice in the imposition of a conviction for the offending. The appellant submitted that on both occasions the District Court failed to give appropriate weight to the breadth and depth of S’s acceptance of guilt, remorse, and rehabilitation since offending. The respondent argued that the delay in bringing charges was not unduly protracted and the offending was not a one-off; rather it was a pattern which started when S was a young person and continued into young adulthood. Gwyn J found that the delay of 37 years between the offending and date of hearing was unduly protracted from the perspective of the accused. S had been dealing with the guilt, contrition and worry as consequences of the offending since it occurred. He had made himself accountable for the offending, including by early admissions of guilt and steps taken in rehabilitation. The appellant’s rehabilitation efforts, including admissions made by S and his commitment to therapy, meant that the discretion to dismiss the charges should be exercised. The court found that the youth offending related charges against S should be dismissed. The court also found that the consequences of conviction would be out of all proportion to the gravity of the offence. The appeal against refusal to grant the application for a discharge without conviction was upheld.

Orders