THE QUEEN v CHRISTOPHER WILLIAM PEACHEY [2001] NZCA 201 (17 July 2001)

IN THE court of appeal of new zealand

ca92/01

THE QUEEN

V

CHRISTOPHER WILLIAM PEACHEY

Hearing:	16 July 2001
Coram:	Gault J Panckhurst J Potter J
Appearances:	T W Fournier for Appellant M J Thomas for Crown
Judgment:	17 July 2001

judgment of the court DELIVERED BY GAULT J

[1] The appellant was convicted after pleading guilty in the District Court at Christchurch to one count of sexual violation by rape and one count of unlawful sexual connection.He was sentenced to imprisonment for five years on each count, to be served concurrently.He now appeals against his sentence.A conviction appeal earlier notified has been abandoned and is, accordingly, dismissed.

[2] The complainant (then aged 14 years) attended a party at the appellant's flat.Over the course of the evening she became intoxicated and the appellant offered her his bed so that she could sleep it off.While she was asleep he removed her underwear and penetrated her digitally before removing his trousers and having intercourse with her.During intercourse the complainant awoke, cried out and pleaded with him to stop.The appellant then withdrew and the complainant passed out again under the influence of the alcohol.She later awoke to find the appellant again digitally penetrating her and kissing her breasts.Again she passed out.When she woke up the next time the appellant had his penis in her mouth.He then forced her legs apart and inserted his penis into her vagina until he ejaculated.

[3] The complainant immediately got up and alerted some friends who stopped a passing police car.The appellant was spoken to shortly afterwards and admitted that it was a stupid thing to do.He was charged with multiple counts of sexual violation but pleaded guilty on arraignment to one count of rape and one count of unlawful sexual connection.

[4] The appellant was sentenced on 20 March 2001.The sentencing Judge referred to the personal circumstances of the appellant noting he had not previously appeared and that he was remorseful.He noted also the appellant was a young 20 year old at the time of the offending, described by everyone as immature and naïve.As to the aggravating factors, the Judge recorded the effects on the victim and her family, he quoted two excerpts from the victim impact statement of the complainant's mother.He also rejected the submission that the offending was opportunistic, concluding that the repeated nature of the offending over the course of the night did not seem like opportunistic behaviour.Also taken into account were the lack of violence other than that which was inherent in the offence and the minimum risk of re-offending.

[5] Taking a starting point of eight years, the Judge then discounted three years to allow for the guilty plea and the youth and naïvety of the appellant.This led to an effective sentence of five years.

[6] The appellant submits that this sentence is manifestly excessive.First, it is submitted that the sentencing Judge erred in his approach to sentencing for a non-contested rape.Secondly, it was submitted that the sentence is excessive having regard to comparable cases and to s7(2) of the Criminal Justice Act 1985.We were invited to consider the view that reading excerpts from a victim impact statement into sentencing remarks is inappropriate and that the portions of the mother's statement describing effects on those other than the victim should not have been taken into account by the sentencing Judge.Counsel suggested that an appropriate sentence would be one of four years imprisonment.

[7] For the Crown Ms Thomas supported the ultimate sentence by reference to the totality of the offending.She submitted that an allowance of three years for the guilty plea and personal circumstances of the appellant was generous having regard to the aggravating features of the offending.

[8] We are not satisfied that the sentencing Judge erred in his approach to the sentencing.As the Judge noted, the present starting point for a contested rape of eight years imprisonment was set by this Court in R v A [1994] 2 NZLR 129.For an uncontested rape case the sentence is generally calculated from that starting point which is to be reduced in cases calling for adjustment to take account of any guilty plea and other mitigating factors and increased where there are aggravating factors.The appropriate allowance for a guilty plea will depend on the circumstances of the case and on the promptness of the plea.That, effectively, was the approach taken in the present case and cannot be criticised.It is necessary, therefore, to consider the sentence actually imposed.

[9] It is also relevant to keep in mind s7 of the Criminal Justice Act although that is factored into the starting point set by this Court, subject to particular circumstances of individual offenders.

[10] By way of comparison, Mr Fournier for the appellant referred us to R v Tikoto CA144/96, judgment 11 September 1996, where a sentence of four years was imposed for sexual violation by rape.He submitted that the disadvantages and characteristics of both Mr Tikoto and the appellant create similar circumstances for sentencing purposes.

[11] Ms Thomas submitted that the present case is clearly distinguishable on the basis of the differing ages of the offenders, (Tikoto was 15) and what she argued were more serious aggravating factors in this case.

[12] We are here presented with features of serious aggravation in the offending.First there is the age and condition of the victim.Sexual offending against under-age children is consistently regarded as more serious than similar offending against adults.The range of offences in the Crimes Act reflects that, as do the decisions of the courts.Young persons are more vulnerable and the law provides for their need of greater protection.

[13] In this case the victim not only was 14 years old but was unconscious from the affects of alcohol.That was exploited.Further, after she had protested when she awoke in the course of the initial assault, the appellant resumed the abuse when she again lapsed into unconsciousness.

[14] Although, as the Judge acknowledged, there was no evidence of violence beyond that involved in the offending, violence was unnecessary to achieve the purpose and there was no room for belief that the complainant was consenting.

[15] In these circumstances a higher starting point than eight years could not have been objected to.

[16] In his submissions Mr Fournier developed his argument that the Judge had improperly taken into consideration statements in a victim impact report in which the appellant's mother explained how the offending had impacted on her and her wider family.It was submitted that they were not within the definition of "victims" in the Victims and Offences Act.We were invited to see this as giving the sentence an unbalanced aspect as had been the case in Sargeant v Police (1997) 15 CRNZ 454, Hammond J.We do not accept that. The complainant was 14 years old and there is nothing improper in having a victim impact statement from her mother.Her statement was directed mainly to the ways in which the offending has affected the complainant.That the consequences impacted also on other members of the family is understandable and we do not see in the sentence, or the Judge's sentencing remarks, any undue emphasis on that.

[17] The significant issue in this case is the allowance to be made for mitigating factors.The appellant pleaded guilty at an early stage, having admitted responsibility from the outset.That must be fully recognised in cases such as this with an appropriate reduction in the sentence.In addition we were pressed to make further allowance for the personal circumstances of the appellant, particularly in light of s7 of the Criminal Justice Act.Although 20 years old at the time of offending, the appellant was described in the pre-sentence report as an "immature and rather naïve young man who has not developed the social skills that are normally found in people of his age".He had only days before ceased to reside at home with his mother and moved into the flat where the offences were committed.The report conveys the impression of an inexperienced person, lacking in confidence, and having acted out of character in a situation he was not equipped to handle.He has no background of offending and is a person assessed as particularly vulnerable within the prison environment.

[18] We have carefully considered this appeal.We do not find any helpful guidance in the Tikoto decision.That involved a 15 year old who offended against an adult.The circumstances were quite different.

[19] The Judge reduced the sentence from his eight year starting point by three years for the guilty plea and the other factors.That was an appropriate reduction.It leaves a substantial sentence for a man who has some personal difficulties and has not previously been imprisoned.But in light of what we have said about the Judge's starting point and the persistent aspect of the offending, we have not been persuaded that the sentence was not within a properly exercised sentencing discretion.

[20] We note that there does seem to be some disparity in the sentences for the two offences.The offence of rape generally is regarded as more serious than that of sexual violation by unlawful sexual connection.But since the sentences are concurrent nothing turns on the point in this case.That only two charges were pursued and pleaded to indicates that the offending was treated as a single event and the sentence to be served is appropriate for that total offending.

[21] The appeal is dismissed.

Solicitors

T W Fournier, Christchurch, for Appellant

Crown Law Office, Wellington