THE QUEEN v JOHN ROBERT BRUCE [1999] NZCA 25 (11 March 1999)

Publication of name or identifying particulars of complainants prohibited by s139, Criminal Justice Act 1985

IN THE court of appeal of new zealand

ca441/98

THE QUEEN

V

JOHN ROBERT BRUCE

Hearing:	11 March 1999
Coram:	Eichelbaum CJ Goddard J Salmon J
Appearances:	PHB Hall for Appellant J Pike for Crown
Judgment:	11 March 1999

judgment of the court delivered by SALMON J

[1] These appeals are against sentences of two years imposed after a plea of guilty on arraignment to a charge of attempted rape and a sentence of six months after a plea of guilty on a charge of driving while disqualified.

The attempted rape charge.

[2] The appellant had earlier been tried on this and other more serious charges arising out of the same incident.The jury was unable to agree and a new trial was ordered.When the appellant pleaded guilty to the charge of attempted rape, the Judge treated his plea as one on an initial arraignment and we deal with the matter on the same basis.

[3] The background to this charge is that the complainant and the appellant had lived together, and had a child of their relationship.They separated in January 1997.In April 1998 the appellant went to the complaint's house to discuss a number of matters, including her relationship with another man and an issue to do with a television set, which the appellant had given to the complainant's son with whom he had a good relationship.

[4] The appellant asked to be shown the son's room.He asked the complainant to come and talk to him there and invited her to sit on the bed.She did not wish to do this but, he reassured her by saying that he would stand at the door and that he just wished to talk to her.

[5] When she sat down the appellant moved towards her.The complainant got up to go.The appellant pushed her onto the bed, held her down with his body weight, and began to undress her.During all this the complainant was struggling and yelling to him to stop.

[6] Finally, the complainant said that her father was arriving.The appellant stopped and the complainant was able to get up and get out of the room.She was very upset by this incident but, suffered no significant injury.

[7] For the appellant, Mr Hall's major complaint was that the Judge inferred that the appellant had a plan for sexual intercourse with the complainant before entering the house.It is not at all clear from the Judge's Sentencing Remarks that this is so.But accepting it, it is clear, and Mr Hall acknowledges, that the offence was premeditated, at least from the time the appellant went to the son's bedroom and that he got the complainant into the bedroom with sexual intercourse in mind.

[8] We are prepared to approach this appeal on the basis of accepting Mr Hall's submission in this regard.

[9] Mr Hall then submitted that as a result of special circumstances which he listed, this Court should conclude that the offending was at the lower level of the scale and such that a non-custodial sentence was warranted.

[10] We are completely unable to accept that submission and in fairness to Mr Hall, he recognised that the submission was unlikely to succeed.

[11] Finally, he submitted that these factors which included the short duration of the trauma, the very forgiving attitude of the complainant, the appellant's continuing contact with the children and the absence of any injury to the complainant, justified the conclusion that the sentence was manifestly excessive.We cannot agree.

[12] The maximum penalty on this charge is 10 years' imprisonment.The Judge took a starting point of three and a half years.Given the violence of the offending, the abuse of the invitation into the complainant's home and the element of deception in getting her into the bedroom, we accept that the starting point cannot be said to be inappropriate.The Judge then gave a generous discount for the plea of guilty and other mitigating factors.We have not been satisfied that this two year sentence is manifestly excessive.

[13] Although not allowing this appeal, we do wish to record that it is to the appellant's credit that he has undertaken an introductory Stopping Violence course, and has sought assistance from Alcoholics' Anonymous.We feel certain that this will stand him in good stead in the future.

The appeal is dismissed.

[14] This Court has no jurisdiction to hear the appeal against sentence on the conviction for driving while disqualified.Accordingly, we constituted ourselves a full Court of the High Court for the purpose of hearing that appeal.The decision is the subject of a separate judgment.

Solicitors:

PHB Hall, PO Box 2486, Christchurch

Crown Law Office, Wellington