v v The King - [2023] NZHC 2989

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2023-485-045

[2023] NZHC 2989

BETWEEN
V

Appellant

AND

THE KING

Respondent

Hearing:
10 October 2023

Joint Memorandum filed 19 October 2023

Appearances:

B J Munro and A Simperingham for Appellant T G Bain for Crown

Judgment:

25 October 2023

JUDGMENT OF GRICE J

(Appeal against sentence)

Background

[1] On 21, 22 and 23 November 2022, Mr V faced a judge-alone trial at the Wellington District Court on the following eight charges in relation to sexual offending against his stepdaughter:

V v R [2023] NZHC 2989 [25 October 2023]

(a)four charges of an indecent act on a young person;1

(b)one charge of sexual violation by unlawful sexual connection;2

(c)one charge of sexual violation by rape;3

(d)one charge of sexual connection with a young person (as an alternative charge to rape);4 and

(e)one charge of attempting to receive commercial sexual services for a person under 18.5

[2] At the beginning of the trial, Mr V pleaded guilty to five of the charges, being the four charges of doing an indecent act on a young person and the final charge of attempting to receive commercial sexual services. The remaining charges of sexual violation by unlawful sexual connection and sexual violation by rape were considered proven by Judge Mills (with the alternative charge being duly dismissed).6

[3] On 16 January 2023, Mr V was sentenced by Judge Mill to eight and a half years’ imprisonment in relation to the seven charges for which convictions were entered.7 Mr V now seeks to appeal the sentence imposed by Judge Mills on the basis that the end sentence is manifestly excessive. The primary ground of appeal is that a sufficient discount was not given for Mr V’s personal mitigating factors. Mr V also seeks to adduce new evidence on appeal, being his s 27 report, which was only produced following sentencing by Judge Mill (through no fault of any person involved).

1      Crimes Act 1961, s 134(3) (maximum penalty of seven years’ imprisonment) – charges 1 to 4, with charge 4 being a representative charge encompassing 3-4 discrete occasions of offending.
2      Crimes Act, s 128(1)(b) (maximum penalty of 20 years’ imprisonment) – charge 5.
3      Crimes Act, s 128(1)(a) (maximum penalty of 20 years’ imprisonment) – charge 6.
4      Crimes Act, s 134(1) (maximum penalty of 10 years’ imprisonment) – charge 7.
5      Prostitution Reform Act 2003, ss 22(2) and 23(1) (maximum penalty seven years’ imprisonment)
– charge 8.
6      Police v [V] [2022] NZDC 23078 [Results Decision].
7      R v [V] [2023] NZDC 498 [Sentencing Decision]; as a result of the convictions Mr V is now also subject to registration on the Child Sex…

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 v v The King

Details

AGLC: v v The King [2023] NZHC 2989
Case: [2023] NZHC 2989
Decision Date: 25 October 2023

CaseChat Overview and Summary

The appeal in this case was brought by Mr V, who was sentenced to eight and a half years’ imprisonment for sexual offending against his step-daughter, K. Mr V argued that the sentence was manifestly excessive because the sentencing Judge did not sufficiently take into account his personal background, which was only revealed after sentencing. Mr V sought leave to adduce a section 27 report as fresh evidence to support his appeal. The appeal was dismissed by the Court. The Court found that while Mr V’s personal background was relevant and the section 27 report was credible and fresh, the report would not have made a difference to the sentence. The Court concluded that a sentence of nine and a half years’ imprisonment would have been appropriate in this case, and the sentence imposed was not manifestly excessive. The appeal was therefore dismissed.

Orders