Savage v The Queen - [2016] NZHC 1330

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

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000020 [2016] NZHC 1330

BETWEEN
BRETT ALAN SAVAGE

Appellant

AND

THE QUEEN Respondent

Hearing: 14 June 2016

Appearances:

A G James for Appellant
AMS Williams for Respondent

Judgment:

20 June 2016

JUDGMENT OF GENDALL J

Introduction

[1] On 2 March 2016, Judge Farish in the District Court sentenced the appellant to nine years’ imprisonment on 10 charges of sexual offending. These charges can be categorised as follows:

(a) Two representative charges of sexual violation by rape, each carrying a maximum penalty of 20 years imprisonment.1

(b)Five charges of sexual violation by unlawful sexual connection (most of which are representative charges), each carrying a maximum
penalty of 20 years imprisonment.2

1 Crimes Act 1961, s 128(1)(a).
2 Section 128(1)(b) and 128B.

(c) Two charges of sexual conduct with a young person between the ages of 12 and 16, each carrying a maximum penalty of 10 years imprisonment.3

(d)One charge of sexual conduct with a child under 12 year, carrying a maximum penalty of seven years.4

[2] The appellant now appeals on the basis that the sentence imposed is manifestly excessive and unjust. Counsel for the appellant submits that the starting point of 14 years was too high and that the discounts for personal mitigating factors were insufficient.

Background

[3] The offending was against three victims. The first is […] who was […] years old at the time of the 2011/2012 offending against her, she being […]. As to the first charge of sexual violation by rape of this complainant, whilst the appellant was in a seated position […], […] sat on top of him. The appellant then proceeded to place his erect penis between her legs and onto her vagina. The appellant moved the victim’s body up and down on top of himself so his penis was moving between her labia against the entrance of her vagina. The appellant stopped near the point of ejaculation and went to masturbate into the toilet. Whilst this was happening, another victim, […], was in the room on the couch next to them witnessing the entire episode.

[4] On another occasion, the appellant had put his hand down […]’s pants and began rubbing her vagina and clitoris for five to 10 minutes. He attempted to insert a finger into […]’s vagina, but she said “oww” so he stopped. However, he continued to rub her vagina and clitoris.

[5] The second victim was […] who was aged […] at the time of the 2014/2015 incidents in question involving her. The appellant was […] up to the time of the
offending. […] suffered the most severe abuse of all three victims. Between

3 Section 132(3).
4 Section 134(3).

February 2014 and May 2015, there were numerous instances when the appellant would have […]. On at least 10 occasions, the appellant would undress […] and digitally penetrate her…

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 Savage v The Queen

Details

AGLC: Savage v The Queen [2016] NZHC 1330
Case: [2016] NZHC 1330
Decision Date: 20 June 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Brett Alan Savage appeals against his nine-year imprisonment sentence for various sexual offences against three victims. The appellant contends the sentence is manifestly excessive and unjust, arguing the starting point was too high and discounts for personal mitigating factors were insufficient. The court considers the nature and severity of the offences, the vulnerability of the victims, the breach of trust, the effect on the victims and their families, the presence of multiple complainants, and premeditation and grooming. The court finds the starting point of 14 years imprisonment appropriate, considering the culpability assessment factors present to a high or significant degree. The court also finds the discounts for the appellant's good character, remorse, co-operation, and guilty plea to be within range, if not generous. The appeal is dismissed.

Orders