R v Porter [2016] NZDC 14550 (1 August 2016)

Last Updated: 1 February 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT TAURANGA

CRI-2013-087-000653 [2016] NZDC 14550

THE QUEEN

v

_{GUY JOHN PORTER}

Hearing:	1 August 2016
Appearances:	H Sheridan for the Crown W Nabney for the Defendant
Judgment:	1 August 2016

_{NOTES OF JUDGE C J HARDING ON SENTENCING}

[1] Mr Porter, you were found guilty in a re-trial by a jury of three separate charges. Those were charges of sexual violation, of injuring and of male assaults female.

[2] You had previously been sentenced in August 2014 for the same offences, subsequent to the first trial by Judge Ruth. His sentencing notes dated

27 August 2014 contain a summary of the facts, which does not need to be repeated other than to observe that a small part of the evidence, mainly of verbal abuse, did not appear in the more recent trial. He sentenced you in relation to the sexual violation charge to five years’ imprisonment. On the male assaults female charge, to six months concurrently and on the injuring charge, to nine months’ concurrently.

[3] There is authority from the High Court in the case of R v Rajamani

_{HC Auckland CRI-2005-004-001002, 25 July 2008, to two particular effects.}

R v GUY JOHN PORTER [2016] NZDC 14550 [1 August 2016]

Firstly, unless facts emerge at a second trial which are significantly different from the first occasion, or, the sentence was manifestly too light, or, was based on reasons which have since been shown to be invalid, the imposition of a substantially longer sentence which would have the appearance of punishment for the necessity of the second trial would be quite wrong.

[4] When you were earlier sentenced you were sentenced on, in addition to the charges to which I have referred, other charges which impacted upon the way the sentence was structured.

[5] There is no material difference in facts between the earlier trial and the present one. The Crown submits that looking at the totality of your offending a custodial sentence in the region of four years and three months is appropriate. That is a little less than the sentence which was imposed earlier, but the situation is a little different. The Crown does not see to depart from the earlier sentence materially.

[6] Effectively, the Crown says a start point of four years for totality, with an uplift of two to three months would be appropriate would be appropriate, to reflect personal aggravating factors including previous convictions and the fact that you were on release conditions when this offending occurred.

[7] Mr Nabney concurs with the position, that is to say he agrees with it. It is also consistent with the leading authority of the R v AM [2010] NZCA 114.

[8] In the circumstances, there is no proper basis to impose a sentence markedly different in principle from that earlier imposed. The previous sentences were not appealed.

[9] You are, in the circumstances, convicted and sentenced:

(a) On the charge of sexual violation to four years and three months’

imprisonment.

(b) To nine months’ imprisonment on the charge of injuring.

(c) Six months’ imprisonment on the charge of male assaults female. Those latter two sentences are to be served concurrently.

[10] A total sentence of four years and three months.

C J Harding

District Court Judge