THE QUEEN v TANIA MAREE WIRA [1999] NZCA 51 (22 April 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca452/98

THE QUEEN

V

TANIA MAREE WIRA

Coram:	Thomas J Blanchard J Tipping J
Decision (ex parte):	22 April 1999

judgment of the court DELIVERED BY TIPPING J

[1] The appellant initially pleaded not guilty to a charge of sexual violation by unlawful sexual connection.The trial was scheduled for August 1990 but the appellant failed to appear.She was not apprehended until August 1998.While Ms Wira initially maintained her plea of not guilty, she changed her plea to guilty in September 1998.She was sentenced to three years and three months imprisonment in the High Court at Auckland.She appeals against that sentence on the grounds that it is manifestly excessive.

[2] The facts can be stated briefly.The appellant and the complainant, who were friends at the time of the incident, were both attending a party on 19 December 1989.Both had consumed large amounts of alcohol when the appellant asked the complainant to accompany her outside.They talked for a while and the appellant then led the complainant along a path to an alcove.The appellant proceeded to push the complainant against the house, forcibly removed her jacket and began to fondle her breasts and genital area.Over a twenty minute period, the complainant was sexually abused a number of times, including fondling of the breasts and genitalia and digital penetration of the vagina. During this time, the appellant held the complainant down and refused to release her, although the complainant was crying.As a result of the assault, the complainant sustained significant injuries to her neck in addition to the obvious emotional trauma.

[3] The appellant applied for legal aid in respect of her appeal.The Registrar declined the application after the necessary consultation under s 15 of the Legal Services Act 1991.The appellant's application for review of the Registrar's decision by a Judge of this Court was also unsuccessful.The appeal is, therefore, to be determined on the basis of written submissions.

[4] It is submitted that the Judge failed to take adequate account of Ms Wira's personal circumstances.In particular, there was no psychological report prepared for sentencing purposes.Ms Wira argues that special circumstances exist in terms of s5 of the Criminal Justice Act 1985 such that, notwithstanding that this was a serious violent offence, a non-custodial sentence would be appropriate.In support of this contention, Ms Wira submits that a term of imprisonment would be counter-productive to her rehabilitation, counselling and the care of her children.The appellant proposes that a term of supervision, coupled with counselling for alcohol addiction and sexual abuse, would be more appropriate.

[5] We have given full consideration to all the appellant's submissions.It seems clear that the appellant herself has a troubled background.She points to incidents of sexual abuse as a child and the death one of her own children through cot death, among other things, as factors to be taken into account. The sentencing Judge also accepted that the risk of reoffending was no more than minimal, and it is true that the appellant has no previous convictions for sexual offences.The appellant also claims that there was more than a relationship of friendship between herself and the complainant at the time of the attack.Whether or not this was the case, it is hardly a mitigating factor in an assault of this seriousness.The appellant used considerable force and subjected the complainant to an aggressive assault over a sustained period.In addition, the attack would seem to have had a major effect on the complainant's life.

[6] The maximum sentence for this type of offence, at the time it occurred, was 14 years imprisonment.Given the seriousness of the offending, we do not consider that the sentence imposed can reasonably be challenged as manifestly excessive.For these reasons, the appeal is dismissed.