The Queen v Leger [2001] NZCA 167; (2001) 19 CRNZ 114 (13 June 2001)

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The Queen v Leger [2001] NZCA 167 (13 June 2001); (2001) 19 CRNZ 114

Last Updated: 13 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 444/00

THE QUEEN

V

JOHN GREGORY LEGER

Hearing:	12 June 2001
Coram:	Thomas J Heron J Hansen J
Appearances:	L B Cordwell for Appellant
	J C Pike for Crown
Judgment:	13 June 2001

JUDGMENT OF THE COURT DELIVERED BY THOMAS J

Appeal against sentence

[1] The appellant, Mr Leger, pleaded guilty in the Kaikohe District Court to two charges of threatening to kill, three charges of injuring with intent to injure, and one charge of assaulting a female. He pleaded not guilty to a charge of sexual violation by rape. He was sentenced to a total of 11 years imprisonment. He now appeals against sentence.

The facts

[2] The complainant had been in a relationship with Mr Leger for some eight years. It began when she was 17 years of age and he was some ten years older. The relationship was characterised by continuing violence on Mr Leger’s part. In March 1999, the complainant obtained a temporary protection order against him. The incident to which the conviction relates occurred after the complainant accepted Mr Leger’s invitation to move to Horeke in September of that year.
[3] On 30 September, following an altercation, Mr Leger threatened to kill the complainant. During the next two days, he assaulted her four times. He repeated the threat to kill her. He hit her in the mouth, punched her on the ground, kicked her in the head and beat her on the head and face. On the fourth occasion, Mr Leger forcibly entered the house during darkness while the complainant was asleep. He struck her about the head. He bashed her head against the bath causing a cut above her right eye. It bled profusely. Mr Leger then carried the complainant into the bedroom and raped her. She begged him to desist, but he did not do so. After he left, the complainant sought help from a neighbour.

The sentence

[4] In sentencing Mr Leger, the sentencing Judge was required to consider whether the home invasion provisions of the legislation applied. He held that the offences of injuring with intent and sexual violation were offences involving home invasion under s 17A(1)(d) and s 17A(3) of the Crimes Act 1961, and that a home invasion had also taken place at the time of the rape. He found that, because of the violence, the complainant had been unable to request her assailant to leave.
[5] Having arrived at a sentence of 11 years imprisonment on the basis that it was a case of home invasion, the sentencing Judge went on to state that the circumstances involved such a degree of aggravation that, disregarding the home invasion provisions entirely, he was able to impose the same sentence. A parallel sentence was appropriate because the same matters had to be taken into account. Starting at eight years, and with no mitigating circumstance to reduce that figure, the impact of a series of assaults over the previous few days “conditioning” the complainant to the final assault and the rape on the Saturday morning amounted to serious aggravation. He considered that an additional three years imprisonment was appropriate to allow for the totality of the incident. The Judge therefore again arrived at a sentence of 11 years imprisonment.

The appeal

[6] In this court, Mr Cordwell, who appeared for Mr Leger, contended that the sentencing Judge had erred in principle in applying the provisions of the home invasion legislation. He argued that the house in which the incident occurred had been rented by Mr Leger and was therefore his home. As a result, he was not unlawfully on the property. Hence, it was not a case of home invasion.
[7] Mr Pike, for the Crown, argued that, although Mr Leger may have treated the house where the incident occurred as his home, his claim fell short of an assertion that he was a tenant. Mr Pike submitted that the Judge’s conclusion that the complainant could revoke Mr Leger’s license to occupy the house was available on the evidence.

The home invasion question

[8] The question whether or not the sexual violation committed by Mr Leger is a home invasion crime is the kind of question which is inevitable under the legislation. There has been, and will continue to be, cases where the question whether the crime took place in the home, or whether the offender was unlawfully in the home, will be a contentious issue. See, for example, R v Clarke [2000] 3 NZLR 354. Yet, the seriousness of the crime and the culpability of the offender does not substantially differ irrespective of whether the home invasion legislation applies or not. In sentencing offenders the Courts have always recognised the sanctity of the home and insisted that violence occurring in a person’s house is to be treated as an aggravating factor calling for a higher sentence. See R v McLean [1999] 2 NZLR 263, at 266; and R v Palmer [2000] 1 NZLR 546.
[9] This case illustrates the futility of the present argument. Mr Leger claims that the house where the incident took place was his “home” and that he was therefore not unlawfully on the property under s 17A(3). It is alleged that he approached the Chairperson of the Horeke Rental Housing Committee to rent a property from the Committee, and that he duly entered into a verbal tenancy agreement. He agreed to pay rent on a weekly basis. The arrangement was to be formalised as soon as he moved into the house. He had, it is alleged, been living in the house for two to three days before the incident occurred. The Chairperson of the Housing Committee had never met Mr Leger’s partner, the complainant, and had not envisaged a joint tenancy between them. On this view, it was contended, the house had clearly been rented to Mr Leger.
[10] In response, Mr Pike referred to evidence given at the trial which suggested that the house was in fact the complainant’s home. Mr Pike adverted to Mr Leger’s evidence to the effect that “as far as I was concerned I was coming home to my home”. He urged that this statement indicated that Mr Leger treated the house as his as well as the complainant’s home, but that the evidence fell short of any assertion that he was the tenant, or even a tenant and liable for the rent. The circumstances pointed to the fact that Mr Leger stayed at the premises when it suited him. While at times he treated it as his house, it was clear that the only possessions of his in the premises were described as “personal”. Mr Pike submitted that, in the circumstances, the complainant was the tenant and that, as Mr Leger would only be in the house under license, the complainant was entitled to revoke this license.
[11] We agree that the sentencing Judge is required to determine whether the crime is subject to the home invasion provisions. What is important, however, is that a Judge in circumstances such as the present indicate what his or her sentence would have been in the absence of the legislation. We commend the sentencing Judge for doing so in this case.
[12] In the result, we do not need to determine the home invasion issue. Apart altogether from that question, the sentence cannot be described as manifestly excessive. The seriousness of the crime and Mr Leger’s culpability is no less significant simply because it is arguable that he may have had some proprietorial interest in the tenancy of the house. The essential fact is that the complainant, and not Mr Leger, was in possession of the house at the time, and the security to which she was entitled was invaded. She was savagely and repeatedly beaten and then raped in what was, to her, her home. At one point Mr Leger broke into the house. Women are entitled to feel secure in premises to which they have the key. Shorn of fine distinctions, the substance of the crime in this case is the same whether or not the home invasion legislation applies.

Our decision

[13] We therefore consider that, while at the top end of the scale and narrowly avoiding the disapprobation of being excessive, the sentence of 11 years imprisonment was within the range open to the sentencing Judge having regard to the aggravating features and the totality of the offending.
[14] In the first place, there were no mitigating circumstances in this case at all. Mr Leger has a history of violence and has previous convictions involving assaults on his partners, including the complainant.
[15] Secondly, the assaults leading up to the rape were callous and brutal in the extreme. There was, as the Judge found, a number of days during which Mr Leger was violent towards the complainant. He threatened to kill her more than once and she was clearly terrified of him. He then cold-bloodedly raped her. The totality of such offending demands a severe sentence beyond the basic starting point of eight years imprisonment for rape.
[16] Finally, it is clear from the Victim Impact Report that the violent assaults and subsequent rape had an extensive impact on the complainant. Her symptoms are consistent with Post Traumatic Stress Disorder. Such symptoms include hypo- vigilance, intrusive thoughts about her assailant, traumatic recall of being beaten and raped, continuing fears for her personal safety, including a fear of being killed by Mr Leger, vacillation between hypo-arousing and feelings of detachment, and emotional numbing and depressive symptoms. The complainant remains fearful of retaliation from Mr Leger in spite of the support and protection of her family. She will require ongoing counselling to assist restore her feelings of personal worth and control over her life. The complainant has clearly been severely affected by the physical abuse and rape which she has suffered at Mr Leger’s hands.
[17] Having regard to these factors we are not prepared to allow the appeal. The appeal is dismissed.

Solicitors
Crown Law Office, Wellington for Crown