September 28, 2012

Rape sentence 'is not a guide', says judge

By David Clarkson

A judge has granted home detention at a teenager?s rape sentencing, but says the case is exceptional and must not be seen as setting a guide in other rape cases.

The offender, Kyle James Henderson, is now 21 but was 17 at the time of the offence in 2008. He pleaded guilty to the rape charge after a sentencing indication from Christchurch District Court Judge Brian Callaghan a few weeks ago that a home detention sentence could be imposed.

Through no fault of Henderson?s, four attempts to hold the trial have failed. That included it having to be abandoned during evidence on the day of Christchurch?s disastrous earthquake on February 22, 2011.

People acknowledged Henderson acted responsibly during the disaster in helping people leave the Court House in the stricken city.

A co-offender, who faces a more serious sentence, has also pleaded guilty to charges of rape and indecent assault and is in custody for sentence next month.

Henderson has shown remorse for the incident that took place at a flat where he and the co-offender lived, on the night of September 29-30, 2008. Two teenage girls were involved in the offending by both men. The girls were said to be affected by alcohol that the co-offender gave them.

Henderson?s victim agreed to meet him at restorative justice conference which took place on Wednesday. Judge Brian Callaghan suppressed details of what took place at the conference but it was said to be ?beneficial for all those involved?.

Defence counsel Elizabeth Bulger said Henderson had received a positive pre-sentence report which noted his remorse and recommended a sentence home detention with community work, with a condition that he be referred to a departmental psychologist.

Judge Callaghan said he took into account the views of the victim, which had been expressed in her victim impact report and at the restorative justice meeting.

?I reached the basis of the indication of a home detention sentence having considered the unique features here,? he said. ?I stress for the community in general this is a very exceptional case.?

He told Henderson he believed home detention could be imposed ?because of your age at the time, your previous good record, your compliance for four years with relatively restrictive bail conditions, the absence of reoffending, the victim?s views, and your remorse which is confirmed in the pre-sentence report?.

He also considered Henderson?s frankness and his preparedness to face the victim.

?This case shold not be taken as a guide for other cases because the law requires imprisonment for rape with very limited exceptions. Here, I interpret the law as allowing me to avoid imprisonment, but only just.?

He described Henderson?s offending as ?very bad and unforgiveable?.

He imposed home detention for 11 months 2 weeks at Henderson?s parents? home with the special condition for psychological counselling and treatment as required. He also imposed 350 hours of community work, with permission to convert some of the hours to training.

The judge warned Henderson that any breach of the home detention sentence would result in a jail term being imposed.