R v Baker [2018] NZDC 3956

Published 05 February 2019

Sentencing — sexual exploitation of a person with significant impairment — vulnerable person — premeditation — grooming — breach of protection order — emotional abuse — R v McNally CA441/92, 6 April 1993 — R v Wilson HC Hamilton CRI-2006-019-5529, 7 June 2007 — R v McInnes [2015] NZHC 3279. The defendant appeared for sentencing having pleaded guilty to one representative charge of sexual exploitation of a person with a significant impairment and a separate and discrete charge of breach of a protection order. The sexual offending related to an incident where the defendant convinced the victim, who had the intellectual capacity of a five- to seven-year old, to travel away from her home with him. The family reported the victim as missing and the pair were found three days later by Police, having been sleeping rough for two nights. A subsequent medical examination revealed that the victim was pregnant and the defendant was the father of the child. The Court noted that there must have been at least two occasions where sexual intercourse had occurred, one prior to the incident. The defendant claimed that the intercourse was consensual as the victim was old enough, but the court noted that the victim was unable to give full and informed consent due to the severity of her intellectual impairment, a disability known to the defendant. The court identified the aggravating factors of the offending as the significant harm caused, the particular vulnerability of the victim, the defendant's knowledge of the victim's disability, the extent of the offending, and that there was an element of premeditation/grooming. In reaching a starting point for the sentence the court looked to relevant case law as there is no tariff case for this type of offending. An uplift was applied in relation to previous relevant offending. Having found that there was no genuine remorse shown by the defendant, no credit was given for remorse and the only credit allowed was for the guilty plea. The second offence related to a threatening letter written to a former partner while the defendant was in custody. The issue for the court was whether the sentence would be cumulative or concurrent. The court noted that the nature of the charge was separate from the sexual offending so would warrant a cumulative term; however, taking into account the totality principle a concurrent term was ordered. The defendant was sentenced to a total of four years and six months on the sexual exploitation charge and four months for the breach of protection order, to be served concurrently. Judgment Date: 2 March 2018.