Van der Merwe v The Queen - [2021] NZHC 1108

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

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-000016

[2021] NZHC 1108

BETWEEN
BRENDON SCOTT VAN DER MERWE

Appellant

AND

THE QUEEN

Respondent

Hearing: 13 May 2021

Appearances:

J Lucas for Appellant

A M Harvey for Respondent

Judgment:

13 May 2021

ORAL JUDGMENT OF GENDALL J

Introduction

[1] The appellant, Brendan van der Merwe, was convicted of rape,1 sexual violation by unlawful sexual connection,2 making an objectionable publication (3),3 possession of an objectionable publication (2),4 and indecent communication with a young person.5

1      Crimes Act 1961, ss 128(1)(a) and 128B.
2      Sections 128(1)(b) and 128B.
3      Films, Videos, and Publications Classification Act 1993, ss 123(1)(a) and 124(1).
4      Sections 131(1) and 131A.
5      Crimes Act, s 124A.

VAN DER MERWE v R [2021] NZHC 1108 [13 May 2021]

[2] On 10 February 2021, following a sentence indication, Mr van der Merwe was sentenced by Judge Farish in the District Court at Christchurch to two years and ten months’ imprisonment.6 He was ordered to pay emotional harm reparation of $3,000. He appeals to this Court against that sentence.

[3] Mr van der Merwe was granted bail pending appeal, pursuant to s 14 of the Bail Act 2000.7

Background facts

[4] I turn now to the background facts in this matter. On 11 January 2020 Mr van der Merwe and the victim had been communicating with each other on Facebook Messenger and it was decided that Mr van der Merwe would visit the victim’s home.

[5] At about 1 am on 12 January 2020, Mr van der Merwe went to the victim’s address. The victim met him at the door and they went up to her bedroom. They were the only people at the address.

[6] Mr van der Merwe and the victim listened to music and, as I understand it, drank some alcohol and smoked cannabis. The victim then fell asleep. Mr van der Merwe attempted to wake her by shaking her vigorously and pinching her face.

[7] When the victim did not wake, Mr van der Merwe pulled her pyjama pants to the side and digitally penetrated her while she was still unconscious; this happened at least twice.

[8] Mr van der Merwe then climbed on top of the victim and penetrated her vagina with his penis while she was still unconscious. At some point during the rape the victim woke to find Mr van der Merwe on top of her. Fearing what would happen if she said something to him, she pretended to be asleep until he stopped.

6 R v van der Merwe [2021] NZDC 2260.
7 R v van der Merwe [2021] NZDC 2223.

[9] Mr van der Merwe walked to the adjacent bathroom, got some tissues and wiped the victim’s vagina and surrounding area. Once again, the victim pretended to be asleep. Mr van der…

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 Van der Merwe v The Queen

Details

AGLC: Van der Merwe v The Queen [2021] NZHC 1108
Case: [2021] NZHC 1108
Decision Date: 13 May 2021

CaseChat Overview and Summary

In the Christchurch Registry of the High Court of New Zealand, Brendan Scott van der Merwe appeals his sentence for convictions of rape, sexual violation by unlawful sexual connection, making an objectionable publication, possession of an objectionable publication, and indecent communication with a young person. The appellant was sentenced to two years and ten months' imprisonment and ordered to pay emotional harm reparation of $3,000. The primary legal issue in this appeal is whether the District Court judge erred in imposing the sentence, particularly whether the starting point and the uplift for additional charges were appropriately applied.

The court considered the appellant's submissions that the sentence was unjust and that the District Court judge erred in rigidly adhering to the bands outlined in the Court of Appeal's decision in R v AM. The Crown argued that the sentence was not manifestly excessive and that the aggravating features of the offending warranted a starting point within the bands set out in R v AM. The court found that the aggravating features, including the persistent nature of the offending, significant breach of trust, victim vulnerability, profound effect on the victim, and the degrading nature of filming the offending, justified placing the offending towards the upper end of band one and the bottom of band two. The court also found the six-month uplift for additional charges to be lenient and increased it to 12 months. The court concluded that no error occurred in the sentencing decision, and thus dismissed the appeal. However, the court granted continuing bail pending the outcome of the potential appeal to the Court of Appeal.

In summary, the court found no error in the District Court's sentencing decision and dismissed the appeal. The appellant's bail was continued pending the outcome of a potential appeal to the Court of Appeal.

Orders