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R v ND [2018] NZYC 602

Published 29 March 2019

Sentencing — Crimes Act 1961, ss 66, 128 & 216 — charged as a party — sexual violation — making an intimate visual recording — Oranga Tamariki Act 1989, ss 282 & 283 — MW v Police — Pouwhare v R. The young person, ND, appeared for sentencing in relation to two charges. The first charge was sexual violation by unlawful sexual connection. ND was charged as a party. The second charge was intentionally making an intimate visual recording of the victim of that sexual violation. The offending occurred when ND was at a party and had been consuming alcohol. The victim and another young man entered a tent that had been pitched on the lawn. Later, ND and two other friends also entered the tent. While two of the young people committed the offence, ND began filming on his phone. Footage of the offending showed the four young men encouraging each other in the sexual violation of the 16 year old victim. Although ND did not sexually touch the victim, it was clear the violation and the filming of it were intended to be part of one event. The issue to be determined was whether ND would be discharged under s 282 or s 283(a) of the Oranga Tamariki Act 1989 (the Act). A discharge under s 282 would mean ND would not face any further penalty beyond the fact of a Youth Court notation. A discharge under s 283(a) would mean ND would face no further penalty but the charge would be recorded against him. ND had admitted the offending and shown remorse. He successfully completed community service, donated $100 of his own money to Rape Crisis and endeavoured to complete the WellStop programme even if the court did not require him to do so. He was assessed as having a low risk of sexual re-offending. The victim's impact statement documented the harm she had suffered, and was likely to suffer for the rest of her life. Her suffering was increased and prolonged by the knowledge that the violation had been filmed and shared by her peers. After weighing all relevant factors the judge decided that because of the seriousness of the offending it would be inappropriate to discharge ND under s 282 of the Act. ND was discharged under s 283(a) of the Act. Judgment Date: 10 October 2018. * * * Note: Names have been changed to comply with legal requirements * * *