R v M CA219/03 [2003] NZCA 388 (19 December 2003)

Last Updated: 11 January 2019

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT

IN THE COURT OF APPEAL OF NEW ZEALAND

CA219/03

THE QUEEN

v

[C D M]

Coram: Keith J
McGrath J Glazebrook J

Counsel: G Boot for Appellant M F Laracy for Crown

Judgment (On the papers): 19 December 2003

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1] The appellant was convicted after a jury trial in Tauranga of one charge of rape. He appeals against the sentence imposed of 2½ years imprisonment.

[2] The appeal is being heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions, which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules

R V [C D M] CA CA219/03 [19 December 2003]

2001 have been considered by members of the Court who have conferred and agreed upon this judgment.

Background

[3] The complainant was 13 at the time of the offending and Mr [C D M] was 14. The complainant had met Mr [C D M] when she had been visiting her grandparents’ house in Whangamata in September 2001. The two sustained a friendship over the final school term of that year by letter and telephone. On 6 January 2002, the complainant returned to stay at her grandparents’ house. Mr [C D M] telephoned her the next evening but she told him he could not come round and said to ring her the next day.

[4] Mr [C D M] told the probation officer that he then drank a significant quantity of alcohol with his friends from about 6pm until midnight. In the early hours of the following morning he entered the basement unit where the complainant, her friend, and her brother were sleeping. He climbed onto the complainant’s bed and had intercourse with her. The complainant woke up, pushed Mr [C D M] off her, and yelled to her friend to turn on the light. Although the complainant was not able to give a visual identification of Mr [C D M], there was DNA evidence linking him to the attack.

[5] The complainant, previously a virgin, was examined by a doctor later that morning and a split to the hymen was noted. The victim impact statement showed that the complainant has been severely traumatised by the event. Her general behaviour in certain respects has deteriorated; she feels socially insecure around young men in a way that she had not previously; and prefers to stay home where she feels safe. As the sentencing Judge observed, the full extent of the impact on the complainant may not be known until many years have elapsed.

Sentencing remarks

[6] The sentencing Judge considered that it was necessary for Mr [C D M] to be held accountable for the offending, despite his young age. The Judge considered that
he had to have regard to the interests of the victim and impose a sentence that would deter Mr [C D M] and others from such offending as well as protect the community. He recognised that he had to look at the least restrictive outcome possible taking into account those factors, given Mr [C D M]’s age.

[7] He noted the aggravating factors of the offending as including the vulnerability of the sleeping victim, that Mr [C D M] was on the premises uninvited and the fact that there was some premeditation. He also noted the mitigating features of youth and good character (apart from the particular offending). He accepted there was some remorse but saw it as focussed on Mr [C D M]’s own situation rather than sympathy for the victim. He said that had it otherwise been, his approach to the sentencing may have been different.

Appellant’s submissions

[8] Mr Boot submits that a sentence of 2½ years imprisonment was manifestly excessive in all the circumstances. Those circumstances include –

(a) The circumstances of and the extent of the offending;

(b) The youth of the offender (he was 14 at the time of the offending);

(c) The family support for the offender;

(d) The offender’s prior good character and indeed his continued good character down to the date of sentencing;

(e) The relevant sentencing principles as referred to by the sentencing Judge.

[9] In Mr [C D M]’s case, as recognised by the sentencing Judge, it is submitted that there are strong mitigating factors in terms of youth justice and Sentencing Act principles. This was also, in Mr Boot’s submission, an isolated incident. Mr Boot recognised that Mr [C D M] is not entitled to the reduction in sentence that follows a guilty plea but, on the other hand, submitted that the effect of continuing with his
defence is far more marked in his circumstances than in the case of adult offenders. Mr Boot submitted that, if Mr [C D M] had admitted the charge, then sentencing would likely have taken place in the Youth Court.

[10] In Mr Boot’s submission, the sentencing Judge has unduly penalised Mr [C D M] for choosing to defend this matter and for his failure to accept guilt. In Mr Boot’s submission, Mr [C D M] was very young and cannot be expected to have the thought processes of an adult. He also pointed out that the offending occurred in January 2002 but Mr [C D M] was not sentenced until May 2003, a prolonged period for a 14 year old. He submitted that Mr [C D M] was an exemplary youth over that period while on bail.

[11] Mr Boot also referred to the case of McKerrow v Police HC CHCH A74/02 13 August 2002, John Hansen J. This involved rape by a 17 year old of a 16 year old complainant and was not referred to the sentencing Judge. In that case, a sentence of two years imprisonment with leave to apply for home detention was imposed even though the penalty for rape at the time was 20 years. Mr Boot acknowledged that Mr McKerrow pleaded guilty but submitted that the age difference (14 and 17) of the two offenders far outweighs that factor.

[12] Mr Boot submitted that Mr [C D M] should have been dealt with in a manner that at least kept open the option of home detention. He was not a risk to the community as his subsequent conduct proved. A short period of imprisonment to mark the community’s disapproval would have been sufficient in this case.

Crown submissions

[13] Ms Laracy submitted that the offending in this case was serious and, even if it had been admitted, was unlikely to have been dealt with by the Youth Court. She submitted that the sentencing Judge gave Mr [C D M] the maximum credit he possibly could to reflect Mr [C D M]’s youth and prospects of rehabilitation. He took account of the positive testimonials concerning Mr [C D M], and accepted that he is a young man who has future potential, and who has done well in his life otherwise to date.
[14] In the Crown’s submission, the Judge at sentencing was presented with an ongoing denial of the offending which is difficult to reconcile with a genuine expression of remorse for the consequences to the victim. In the face of a refusal to acknowledge the fact and seriousness of what he had done, it is difficult, in the Crown’s submission, to place great confidence in Mr [C D M]’s rehabilitative prospects. The sentencing Judge was entitled to treat remorse and rehabilitation as mitigating features which did not deserve as much weight as might otherwise have been the case.

[15] The Crown then referred to a number of cases, including that of R v McKay, CA131/93, 11 June 1993. In McKay a sentence of 2½ years imprisonment was reduced on appeal to 2 years. This Court, while allowing the appeal, observed that there was no error in the approach of the sentencing Judge to impose a sentence which represented half the (then) appropriate starting point had the appellant been an adult. The case was, however, decided prior to the 1993 increase in maximum penalty for sexual violation which saw a proportional increase in sentences for rape.

[16] The Crown also referred to the case of R v Titoko CA144/96, 11 September 1996 which was decided after the 1993 penalty increase. In that case the appellant had turned 15 only 10 days prior to the offending, which involved the rape of a friend’s mother while she slept. Mr Titoko pleaded guilty at the first available opportunity and was sentenced to 4 years imprisonment. His upbringing featured parental neglect, physical abuse, and gang association. Ultimately this Court considered that a term of 3 years imprisonment was appropriate.

[17] As to the case of McKerrow v Police referred to by the appellant the Crown points out that the sentence in McKerrow has been recently called into question by this Court in R v Tawha CA396/02, 26 February 2003. Gault P delivering the decision of the Court, described the sentence in McKerrow (and in the related case of R v Leger, CA22/01, 17 May 2001) as lenient and said that it cannot be said to reflect or establish a sentencing level for youthful offenders convicted of sexual violation.

Discussion

[18] The offending in this case was serious. The victim was young and vulnerable. As pointed out by the sentencing Judge, the offending occurred at a time when she was sleeping in her grandparents’ house and should have been safe. The effect on the complainant has been devastating and will without doubt have long- term consequences.

[19] In our view the sentence imposed was well within the range available to the Judge given the serious nature of the offending, even taking into account the appellant’s youth and prospects of rehabilitation. It is also, as pointed out by the Crown, comparable with sentences imposed in other cases of this nature. There was no discount available for a guilty plea and the Judge was entitled to come to the view that there was no true remorse and thus that there was an absence of what would have been a further mitigating factor.

Result

[20] The appeal is dismissed.

Solicitors:

Gavin Boot Law, Hamilton for Appellant Crown Law Office, Wellington