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W v The Queen

W v The Queen

Case [2019] NZHC 3144 2 December 2019

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ORDERS PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011 AND OF PARTICULARS OF CONNECTED PERSON (P) PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011. SEE RESPECTIVELY:

align="center">NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011 AND OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE (RESPECTIVELY):

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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2018-454-19

[2019] NZHC 3144

BETWEEN
W

Appellant

AND

THE QUEEN

Respondent

Hearing: 27 November 2019

Counsel:

L A Scott and S W O Campbell for Appellant J A Eng and J M Irwin for Respondent

Judgment:

2 December 2019

JUDGMENT OF ELLIS J

[1] On 17 August 2018, following a Judge alone trial before Judge Rollo,1 W was convicted of 11 charges relating to offending against his former wife (TL) and her twin children (C and L):

1 R v [W] [2018] NZDC 14411 [Conviction decision].

W v R [2019] NZHC 3144 [2 December 2019]

(a)one representative charge of assaulting a child (C);2

(b)two charges of assault with intent to injure (C and L);3

(c)one charge of assault with a weapon (C);4

(d)three representative charges of doing an indecent act on a child under the age of 12 (C);5

(e)one representative charge of threatening to kill (C);6 and

(f)three charges of sexual violation by rape (TL).7

[2] He was discharged or found not guilty on a further eight charges.8 On 19 October 2018, Judge Rollo sentenced W to 13 years’ imprisonment and imposed a six and a half year minimum period of imprisonment (MPI).9 W now appeals both his conviction and sentence.

Background

[3] W was previously married to TL. She had twins from a previous relationship, L and C (now 15 years old). TL and W began their relationship in 2006 and were married in 2008.

2      Crimes Act 1961, s 194(a) [maximum sentence of two years’ imprisonment].
3      Section 193 [maximum sentence of three years’ imprisonment].
4      Section 202C [maximum sentence of five years’ imprisonment].
5      Section 132(3) [maximum sentence of 10 years’ imprisonment].
6      Section 306 [maximum sentence of seven years’ imprisonment].
7      Sections 128(1)(a) and 128B(1) [maximum sentence of 20 years’ imprisonment].
8      W was acquitted on one charge of threatening to kill (TL) on the grounds of “double jeopardy”, and three representative charges of assaulting C were combined into a single representative charge (resulting in two of the original three being dismissed). Another representative charge of assaulting C was dismissed for similar reasons and W was acquitted on two charges of ill-treatment of a child (C and L) because the judge was not satisfied that the Crown had proved a “major departure from the requisite standard of care”. Two…

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 W v The Queen

Details

AGLC: W v The Queen [2019] NZHC 3144
Case: [2019] NZHC 3144
Decision Date: 2 December 2019

CaseChat Overview and Summary

W appeals both his conviction and sentence. In relation to his conviction, W argues that the trial judge should have severed the charges involving his former wife, TL, from the charges involving TL’s twin daughters, C and L. W claims this failure gave rise to unfair prejudice and the improper use of propensity reasoning such that a miscarriage occurred. W also submits that the trial judge erred in considering W’s prior conviction for assaulting TL as propensity evidence. In relation to sentence, W does not challenge the length of his sentence but argues that there was a breach of natural justice in relation to the imposition of a six and a half year minimum period of imprisonment (MPI). W submits that in the circumstances of his case, an MPI could not be justified. The appeal against conviction is dismissed. The appeal against sentence is allowed and the MPI is quashed. W’s sentence is reduced to 13 years’ imprisonment with no MPI.

Orders