Sherratt v R - [2021] NZHC 1901

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2021-412-000007

[2021] NZHC 1901

BETWEEN
ISRAEL SHERRATT

Appellant

AND

THE CROWN

Respondent

Hearing: 28 June 2021

Appearances:

M A Stevens QC for the Appellant R D Smith for the Crown

Judgment:

27 July 2021

JUDGMENT OF NATION J

Introduction

[1] The appellant, Israel Sherratt, was sentenced1 by Judge Large at the Dunedin District Court on 24 February 2021 to two and a half years’ imprisonment on two charges of unlawful sexual connection,2 and two charges of attempted rape.3 The Judge also required Mr Sherratt to pay $5,000 emotional harm reparation.

[2]Mr Sherratt appeals that sentence on the basis it is manifestly excessive.

Facts

[3] Mr Sherratt and the victim were friends of similar age and had known each other for about five years. The pair would send daily messages to each other using the

1      R v Sherratt [2021] NZDC 3499.
2      Crimes Act 1961, s 128(1)(b) and s 128B.
3      Crimes Act 1961, s 129(1).

SHERRATT v R [2021] NZHC 1901 [27 July 2021]

Facebook Messenger app. The victim had been to Mr Sherratt’s home address on several occasions.

[4] On 16 December 2019, Mr Sherratt messaged the victim to come to his address for a drink. The victim drove herself there, arriving at about 5.30 pm. Mr Sherratt’s partner was also at the address. The group drank wine, had dinner and used the spa at about 9.10 pm, where they continued to drink. At about 1.00 am, Mr Sherratt’s partner left the spa, at which point the victim and Mr Sherratt were intoxicated. The victim allowed Mr Sherratt to touch her vagina and breasts. She did not resist or complain. Mr Sherratt’s partner saw part of this touching and a verbal argument ensued between Mr Sherratt and his partner. The victim got out of the spa and went to bed naked in a spare room at the address.

[5] In the early hours of the morning, the victim woke up to find Mr Sherratt lying on top of her. He had his hand over the victim’s mouth and told her to shush. Mr Sherratt tried to force his penis into her vagina but was unable to get an erection. Mr Sherratt masturbated himself in an attempt to get an erection but was unable to do so. He then inserted his fingers into the victim’s vagina while she squirmed and moved in an attempt to remove them. The victim repeatedly said “no” and told Mr Sherratt to get off her, but he continued.

[6] After a short time, Mr Sherratt gave up and lay beside the victim on the bed. The victim told Mr Sherratt to leave, reminded him he was her friend and asked what he was doing. The victim was unsure what to do as she was unable to drive due to her alcohol consumption and did not know who to contact. She passed out and woke up a short…

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 Sherratt v R

Details

AGLC: Sherratt v R [2021] NZHC 1901
Case: [2021] NZHC 1901
Decision Date: 27 July 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Israel Sherratt appeals his sentence of two and a half years’ imprisonment, imposed by Judge Large at the Dunedin District Court on charges of unlawful sexual connection and attempted rape. The appeal is based on the argument that the sentence is manifestly excessive. The legal issues to be decided by the Court are whether the starting point, the discount for remorse, and the discount for previous good character were correct and whether the sentence imposed was manifestly excessive. The Court found that the starting point was justified by the culpability assessment factors of harm to the victim, breach of trust, and the scale of the offending. The Court also found that the discount for remorse and previous good character were within the appropriate range. The Court dismissed the appeal and upheld the sentence imposed by the District Court.

Orders