The man sentenced for indecent assault outside the Nelson District Court. Photo / NZ Herald
The man sentenced for indecent assault outside the Nelson District Court. Photo / NZ Herald
A lawyer aiming to get his client discharged without conviction on sexual offence charges has been berated for a comment a judge said was irrelevant and old-fashioned.
The defendant, who no longer has name suppression but can't be named without revealing the identity of the victim, had earlier admitted charges of indecent assault. He was instead sentenced to community detention and intensive supervision.
The then 15-year-old was in a relationship with the man's son and was living between her home and the defendant's home, before moving in with her boyfriend and his dad on a more permanent basis.
Over three years, there were two instances between March 2018 and July 2021 when her boyfriend's father - 34 years her senior - touched her intimately, leading to the charges of indecent assault.
As Judge Jo Rielly heard how the offending had affected the young woman's life, she also chastened lawyer Kyle Simonsen for raising a point around the timing in which the victim had moved into a new relationship.
Lawyer Kyle Simonsen has been told by a judge a comment he made in defence of his client was "irrelevant and old-fashioned". Photo / Supplied
The isolation and lack of trust in men the victim spoke of had been helped in part by her new partner, which Simonsen said she had met only a few weeks after ending the relationship with her former partner.
Simonsen added while he was in no way trying to diminish what had happened to her, it did raise a point around how much could be pinned on the defendant, who was himself vulnerable.
Judge Rielly interjected and asked Simonsen how the timing around the victim's relationship was in any way relevant.
"There are some very old-fashioned stereotypes creeping in with submissions like that, which are best left alone," she warned him.
Simonsen said the defendant had his own issues, and the two had a shared bond as two vulnerable people who felt comfortable in each other's presence.
He told Open Justice outside court that he wasn't running a consent argument, and neither was he trying to invoke any stereotype. He said two different dates about when the new relationship started had been given in a statement, and it was important the defendant's position was outlined.
The young woman whose trauma was revealed in a victim impact statement read in court by her support partner and seen by Simonsen just before sentencing, slapped her hands over her mouth as Judge Rielly mentioned prison as a starting point in sentencing.
The 53 –year-old man was instead sentenced to four months' community detention, and 18 months' intensive supervision, from a starting point of 18 months behind bars.
The victim, who appeared in the Nelson District Court via an audio-visual link from Christchurch, was commended for her bravery.
Judge Rielly said it was a great shame the young woman had suffered the way she had, including that it had led to her engaging in harmful behaviour.
"The only way to describe the effects is that they have been profound and far-reaching, and this has affected almost every aspect of her life.
"I'm impressed by her strength in showing up here today," Judge Rielly said.
The victim's account revealed the depth of the psychological impact on her when her offender refused her requests to stop touching her intimately when she was home, with her partner.
The police summary of facts said it was soon after they began dating that her partner's father started hugging her. The pair then messaged each other on social media, and the defendant also began driving the victim to courses she was attending at the time.
He also gave her driving lessons, when police said he would sometimes put his hand on her lap, or they would cuddle in the back seat of the car.
Between March 2018 and July 2021, when the victim had told him to stop the intimate touching, she was in the kitchen when he approached her from behind and touched her buttocks and breasts, forcing her to leave the room.
On another occasion, the victim was in the garage when the defendant, who had been drinking, stood in front of her and asked for a hug. She agreed, but then he touched her breast and tried to touch her groin.
She spoke of the anorexia which had developed, the fear of losing her partner if she told, and the flashbacks she tried to tame with self-harm which arose as she struggled to deal with growing hatred of her own body.
The victim said she was triggered by seeing the type of car the offender drove, or once in a furniture shop, she saw a couch like his. She was afraid of violence on television, and soon, alcohol was her "closest friend" - her "number one support".
She began selling belongings so she could buy more alcohol, and by the age of 19, was diagnosed with alcohol dependency.
"I would wake up and begin drinking the moment my eyes opened."
She later told police she had been afraid to say no because of his age and authority in the house.
Simonsen reiterated he did not intend to minimise the impact on the victim, but the defendant's position was that she was vulnerable through pre-existing conditions and that he had been trying to help by driving her to various courses.
He said in response to a question about the consequences of discharging the defendant without conviction that it would restrict his job and planned volunteer activities.
Judge Rielly said the offending happened against a backdrop of the man being in a position of authority, including that the victim was 34 years his junior, and had been in a relationship with the man's son while living in their home.
Judge Rielly acknowledged the cumulative effect on the defendant from a string of physical injuries he'd suffered, plus mental health challenges.
She noted the offending was linked to disinhibition from the alcohol he was consuming as a way to "self-medicate", but it was speculative to say a conviction might harm his future job prospects because the defendant was receiving ACC cover through not being able to work.
Judge Rielly said the consequences of a conviction were not out of proportion to the gravity of the offending and declined the request for a discharge without conviction.
