Walsh v The Queen - [2016] NZHC 2747

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2016-485-79 [2016] NZHC 2747

BETWEEN
IAN JAMES WALSH

Appellant

AND

THE QUEEN Respondent

Hearing: 8 November 2016

Counsel:

C J Tennet for appellant
S W P Woods for respondent

Judgment:

16 November 2016

RESERVED JUDGMENT OF DOBSON J

[1] This is an appeal from a sentence of two years and three months’

imprisonment imposed in the Wellington District Court by Judge Hobbs on

8 September 2016.1 The appellant (Mr Walsh) had pleaded guilty to one of each of the following charges:

· making an objectionable publication;

· indecent communication with a person under 16;

· travelling to meet a young person following sexual grooming.

[2] Mr Walsh entered guilty pleas to all three charges promptly after receiving a sentence indication from the Judge, and was sentenced consistently with that sentence indication. The Crown accepts that those circumstances are not relevant to
the entitlement of Mr Walsh to appeal, or the grounds raised in doing so.

1 R v Walsh [2016] NZDC 17507.

WALSH v R [2016] NZHC 2747 [16 November 2016]

The circumstances of the offending

Indecent communications, and travelling to meet a young person following sexual grooming

[3] In February 2016, Mr Walsh made contact via a networking website on the internet with a person who described herself as a 13 year old girl. In May 2016, the two began communicating by text messages. Mr Walsh sent the recipient some hundreds of messages between 25 May and 2 June 2016, many of which were sexually explicit. They describe the sexual acts he wanted to do with her including sexual intercourse and taking her virginity.

[4] The recipient messaged that she was 13 years old and at high school. Mr Walsh responded that it did not matter if she was at college or intermediate, or that 13 was her age. Mr Walsh directed the recipient to delete the messages he was sending so that her mother would not see them, and that their “relationship” had to be kept secret from her parents because if he was caught it would be jail for him.

[5] After trying to meet on Saturday, 28 May 2016, which did not happen, Mr Walsh made arrangements to meet the recipient of his communications at a McDonald’s restaurant in Newtown, Wellington, on Thursday, 2 June 2016. His stated intentions were to collect the recipient from the restaurant and return to his flat so they could have sex. He understood she had a free period off school.

[6] The recipient was a fictitious identity being used by an investigating officer. When Mr Walsh arrived at the restaurant for the meeting he had arranged by text message, he was arrested.

[7] These charges were brought under ss 124A and 131B of the Crimes Act 1961. Those sections provide as follows:

124A Indecent communication with young person under 16

(1) A person of or over the age of 16 years is liable to imprisonment for a term not exceeding 3…

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 Walsh v The Queen

Details

AGLC: Walsh v The Queen [2016] NZHC 2747
Case: [2016] NZHC 2747
Decision Date: 16 November 2016

CaseChat Overview and Summary

Ian James Walsh appeals against his sentence of two years and three months’ imprisonment imposed by the Wellington District Court for charges including making an objectionable publication, indecent communication with a person under 16, and travelling to meet a young person following sexual grooming. The court was required to decide whether the District Court Judge erred in imposing the sentence. The key issue was whether the sentence was manifestly excessive. The court considered whether the District Court Judge correctly assessed the seriousness of the offending and applied the appropriate starting points and discounts.

The court held that the District Court Judge correctly assessed the seriousness of the offending. The objectionable publication involved a young pre-pubescent child sleeping naked, with the appellant directing the filming and making sexual comments. The court found the two-year starting point for this offence was appropriate, considering the seriousness of the offending and the need for deterrence. For the other charges, the court found the one-year starting point was appropriate, given the extent of the pre-meditation, the number of messages, and the appellant's resolve to meet the young person. The court endorsed the cumulative sentence of three years, finding it justified by the overall criminality. The court rejected arguments for additional discounts for remorse, noting the appellant showed limited insight into his offending. The appeal was dismissed.

The final orders of the court were that the appeal is dismissed.

Orders