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Whitcombe v Police

Whitcombe v Police

Case [2018] NZHC 1409 14 June 2018

Jurisdiction

Youth Discount

Rehabilitative Prospects

Aggravated & Exemplary Damages

Compensatory Damages

Criminal Law

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NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CRI-2018-463-40

[2018] NZHC 1409

BETWEEN
CALEB SEYMOUR WHITCOMBE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 May 2018

Counsel:

N P Chisnall for Appellant A J Gordon for Respondent

Judgment:

14 June 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 14 June 2018 at 2:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
N P Chisnall (Auckland) for Appellant Gordon Pilditch (Rotorua) for Respondent

WHITCOMBE v POLICE [2018] NZHC 1409 [14 June 2018]

Introduction

[1] Mr Whitcombe appeals his sentence of two years and six months’ imprisonment for sexual offending against two teenage girls.1 His argument is that because he was 17 years old at the time of his offending (and he is now only 18 years old), he should have been given a greater discount for his youth so that his end sentence was less than two years, and a sentence of home detention should have resulted.

Background

[2] Mr Whitcombe’s offending is set out in Judge M A MacKenzie’s sentencing notes:

[3] In a time sense, the offending which happened first was that which involved Miss D. That happened on 3 February 2017. The two of you had communicated via social media and arranged to go to McDonalds for lunch on 3 February. Instead, the two of you went to the Botanical Gardens. You went and sat in the gardens, the two of you kissed and you put your hands on the inside of Miss D’s thighs, moving them up under her skirt to her genitalia. You started rubbing her genitalia on the outside of her underwear. Miss D told you that this made her feel uncomfortable. She stood up and asked you to take her back to school. The two of you started walking back to the car. You then guided her into a bush where you pulled her to the ground and you pulled down her skirt and underwear. You knelt in front of Miss D and inserted your fingers into her vagina forcefully. Your actions caused Miss D’s genitalia to start bleeding. She repeatedly asked you to stop, as your actions were unwanted and causing her pain. You noticed the blood on your fingers and asked Miss D if she was on her period, but continued thrusting your fingers in and out of her genitalia nevertheless. Miss D said that she did not have her period and that you were hurting her and asked you to stop. After a period of time, you stopped and you got up and walked back to the car, leaving Miss D on her own to pull up her underwear.

[4] Miss D told a friend a few days later. The friend messaged you to say that you should stay away from Miss…

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 Whitcombe v Police

Details

AGLC: Whitcombe v Police [2018] NZHC 1409
Case: [2018] NZHC 1409
Decision Date: 14 June 2018

CaseChat Overview and Summary

Caleb Seymour Whitcombe appeals his sentence of two years and six months' imprisonment for sexual offending against two teenage girls. Whitcombe's argument is that because he was 17 years old at the time of his offending (and he is now only 18 years old), he should have been given a greater discount for his youth so that his end sentence was less than two years, and a sentence of home detention should have resulted. The legal issues before the court were whether the sentence was manifestly excessive and whether the discount for youth was appropriate. The court found that the sentence was not manifestly excessive and that the discount for youth was appropriate. The court noted that Whitcombe's offending did not have the hallmarks of impulsive risk-taking associated with adolescent brain development. The court also noted that the likelihood of participation by Whitcombe in a SAFE course effecting a meaningful rehabilitation could not be assessed. The court looked to similar cases for guidance and found that a discount of 30 percent was appropriate and consistent with similar cases. The appeal was dismissed.

Orders