THE QUEEN v RAYMOND SELWYN [2001] NZCA 366 (6 December 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca327/01

THE QUEEN

V

RAYMOND SELWYN

Hearing:	6 December 2001
Coram:	Keith J Doogue J Gendall J
Appearances:	S Cassidy for Appellant J M Jelas for Crown
Judgment:	6 December 2001

judgment of the court DELIVERED BY GENDALL J

[1] The appellant pleaded guilty on arraignment to the crimes of burglary and sexual violation by rape.He was sentenced to a term of eleven years imprisonment on the count of rape, and imprisonment for one year, on the count of burglary to be cumulative.He appeals against those sentences.

[2] The essential facts are that the crimes committed by the appellant occurred separately, two days apart.He broke into a dwelling house during the night hours of 23-24 September 2000 stealing a television set and some food items. Two days later at 3.30am he gained entry into the house through a window and approached a 51 year old woman occupant who was asleep in her bedroom.He sexually violated and then raped her over a period of 15 minutes.That offence clearly was committed in the course of home invasion as proscribed by s17C of the Crimes Act 1961 as inserted by the Crimes (Home Invasion) Amendment Act 1999.

[3] The appellant had 114 previous convictions including multiple burglaries, 21 for unlawful entry type offences, and 9 for assault but none for sexual crimes.In imposing sentence the Judge said that, taking into account the element of home invasion as he had to, the starting point for this crime of rape was a term of 11 years imprisonment.The Judge referred to aggravating features, which included pre-meditation, additional violence used upon the victim and the previous convictions of the appellant.An allowance of two year's imprisonment was given for the guilty plea.Consequently a sentence of 11 year's imprisonment was imposed and separately the Judge imposed a further cumulative one year's imprisonment for the burglary.

[4] The grounds as argued by the appellant on appeal were twofold.First, counsel conceded that a starting point of 11 years imprisonment on the crime of rape, as adopted by the sentencing Judge, was appropriate.He submitted that insufficient credit or allowance was made for the guilty plea and aggravating features were given too much weight.Secondly, it was contended that the sentence of one year's imprisonment for the crime of burglary should not have been cumulative so that the total effective sentence of 12 year's imprisonment was said to be manifestly excessive.

[5] This Court in R v Palmer [2000] 1 NZLR 546 discussed the application of the home invasion legislation in cases of rape.It emphasised that in applying the totality principle to home invasion rape cases care is required to ensure that the home invasion element is discreetly addressed and that the increased penalty flowing from that is identified in the sentence.After a starting point of 11 years for home invasion rape thereafter aggravating and mitigating factors are to be taken into account in accordance with the existing sentencing principles.Bearing in mind that the home invasion element has already been incorporated, in adopting a starting point of 11 years the Judge, must still determine whether the seriousness or particular nature of a home invasion warrants a further increase in the sentence over and above that allowed for in the starting point.

[6] In the present case the Judge identified as aggravating features that the rape offence was premeditated and pre-planned; that there was additional digital penetration of the victim prior to the rape; that there was additional violence used on her in addition to the act of rape and that the event was prolonged to the extent that it took some 15 minutes.The Judge also said that he considered that the invasion of the sanctity of the victim's house whilst she was asleep was a serious feature.Counsel submitted that this was in effect a "double counting" of the home invasion element, which had already been taken into account in fixing the starting point.We do not agree.It was entirely open to the Judge to determine that the facts of this home invasion were sufficiently serious (being a night time burglary of a single woman's home with entry through a window) to warrant a further increase in the sentence over and above that allowed for in the starting point; see R v Palmer (supra) (para 37).We note that the Judge did not identify the 114 previous convictions of the appellant as an aggravating feature, which he would have been well entitled to do.We cannot see that an increase of two years for the aggravating features that the Judge did identify was excessive.

[7] The Judge then turned to mitigating factors and regarded only the plea of guilty as being relevant.We agree.It was argued that insufficient allowance for this plea was given by the Judge and counsel referred to this Court's reference in Palmer (supra) at para 48:

In this case, therefore, it would not be untoward to allow four years for Mr Palmer's early plea of guilty together with the other mitigating factors.

[8] But the other mitigating factors in Palmer included his age, absence of relevant serious convictions and genuine remorse.

[9] In the present case the aggravating features would have fully justified, before taking into account the guilty plea, a term of 13-14 years and given the extensive previous convictions of the appellant and the relatively late guilty plea when conviction was clear, an allowance of two years for a guilty plea could not have been said to be inappropriate.The offending was extremely serious involving night time intrusion into a woman's home by a recidivist burglar who had previously "cased" the premises involving forceful rape with additional sexual indignities over a period of 15 minutes in the sanctity of her home and required a condign sentence.

[10] The Court must stand back and look at the ultimate sentence and a term of 11 years imprisonment for the rape offence was well within the permissible range available to the sentencing Judge.

[11] Counsel submitted that the burglary offence arose essentially out of the same set of events and therefore the cumulative term of one year's imprisonment should not have been imposed.We do not accept that submission.

[12] The burglary was a separate crime, occurring with separate motives, on a separate day.No doubt it enabled the appellant to become familiar with the layout of the home, which he was later to invade and to rape the occupant but we do not agree that a concurrent sentence was required.Indeed it may well have been that the earlier burglary and ascertaining the layout of the home was an aggravating feature in respect of the home invasion rape, because it resulted in later premeditation and involved inevitably the appellant obtaining some knowledge of the identity of the occupant.But there is no basis for the appellant to complain about the cumulative sentence given his previous convictions and the separate nature of this offence.There is no element of excessive or double counting of aggravating features.As this offence was additional and quite separate, a cumulative sentence was justified.

[13] For the foregoing reasons we cannot conclude that the effective sentence of 12 years imprisonment arising from the cumulative sentence, was inappropriate.Such a sentence appropriately reflected the totality of the offending when credit was given for the guilty pleas.The appeal must be dismissed.

Solicitors

Crown Law Office, Wellington for Respondent