R v Kelly [2019] NZDC 682

Published 12 September 2019

Sentencing — indecent assault — attempted sexual violation by unlawful sexual connection — sexual violation by rape — psychiatric reports — consideration of preventive detention — R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 — Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 — Ryan v R [2018] NZCA 586 — Sentencing Act 2002, ss 84 & 85. The defendant appeared for sentence after being found guilty on charges of indecent assault, attempted sexual violation by unlawful sexual connection and sexual violation by rape. The defendant had been in his late teens at the time of the offending, while his two victims were much younger. The defendant was eligible for consideration for a sentence of preventive detention, but the Court considered that a finite sentence would be sufficient to meet the purposes of sentencing and proceeded on that basis. The offending centered on a community organisation. The defendant indecently assaulted the first victim at the community organisation, and raped the second victim in a location near the community organisation. He had also previously attempted to sexually violate the second victim near her home. The aggravating features of the lead charge of rape were major impact on the victim, vulnerable victim, premeditation, and additional violence. The Court set a start point of eight and a half years' imprisonment and added uplifts of 18 months for the previous attempted sexual violation on the second victim, and four months for the offending against the first victim. The Court applied discounts for the defendant's youth and immaturity at the time of the offending, for his psychological problems, and for the totality principle. The sentence was seven and a half years' imprisonment, to be served on top of the five years the defendant was already serving for separate offending. The Court decided not to impose a minimum period of imprisonment. Judgment Date: 17 January 2019.