R v H (CA273/03) [2003] NZCA 422 (19 September 2003)

Last Updated: 4 December 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA273/03

THE QUEEN

v

H (CA273/03)

Hearing: 16 September 2003

Coram: McGrath J Hammond J R Young J

Appearances: S J Hembrow for Appellant

J M Jelaś for Crown

Judgment: 19 September 2003

_{JUDGMENT OF THE COURT DELIVERED BY McGRATH J}

[1] The appellant was convicted in June 2003, following trial by jury in the District Court, of having sexual intercourse with a girl aged 14 years. At the time of the offending, on 22 December 2001, he was 17 years of age. On 3 July 2003 he was sentenced to two years imprisonment. Leave to apply for home detention was refused.

[2] The appellant went with a friend to the house of the friend’s brother where there was a social gathering with a number of young people present. He met the complainant who consumed an excessive amount of liquor during the evening. After

_{about an hour, during which he and the complainant talked, the appellant left the}

R V H CA CA273/03 [19 September 2003]

house with his friend for a period, returning late at night. They found that most of those in the house had by then gone to bed. The complainant herself was asleep on the floor of the lounge having been wrapped in a blanket and put on a mattress on the lounge floor. The appellant’s case was that he knew she had been drinking but not that she was drunk. He also said he did not know she was 14 years of age but conceded he made no inquiry as to how old she was.

[3] It was arranged that the appellant and others would sleep in the lounge. When all in the house had retired the appellant woke up the complainant, told her he was cold, and asked if he could lie down beside her on the edge of the bedding under the blanket to go to sleep. He then did so.

[4] In the early hours of the morning the appellant removed the complainant’s clothing, according to his statement to the police with her help. He said he thought she was awake at the time but that she may have drifted off to sleep once or twice. He also said that mutual kissing and fondling took place. He then engaged in a sexual encounter with the complainant, licking her vagina and, after further kissing and caressing her, he had sexual intercourse with her twice. He said that she was moving with him and had her hands on his back.

[5] The complainant’s version of these events was that she awoke from her alcohol induced sleep to find herself naked and the accused on top of her. She rolled over to get away from him. She felt sore in the region of her lower stomach and vagina and got up and went to the bathroom. After that she found her pyjamas and went and woke up a friend, who was in another room, and she told her what had happened.

[6] The appellant told the police that he believed the complainant was 17 years of age. He was charged, alternatively, with rape and having sexual intercourse with a fourteen year old girl. The jury acquitted him of the rape charge but convicted him on the charge of unlawful sexual intercourse.

[7] At the time of his sentencing the appellant was 19 years old. The District

Court Judge said that he saw the aggravating factors in the appellant’s offending as

being the vulnerability of the complainant, both on account of her age and her being intoxicated. He said that she had been exploited. The mitigating factors were the appellant’s age and previous good character. The Judge also referred to past sexual experience of the appellant and observed that once he decided to embark on his offending he did it in a structured way over a considerable period of time. The offending moved from oral sex through to full sexual intercourse. The Judge accepted that the appellant accepted his wrongdoing and that he wished to write a letter of apology to his victim.

[8] The Judge referred to and, it seems, accepted, submissions from the Crown prosecutor that sentences of imprisonment are generally imposed for offending of this kind, except in cases where there had been fully consensual sexual intercourse between two young adults on a single occasion. The Judge also said that sexual offending against under age children is consistently regarded as more serious than similar offending against adults because of their greater vulnerability.

[9] In these circumstances the Judge saw that the appropriate sentence had to be one of imprisonment, which could properly be put at the lowest point in the range, because of the appellant’s full and frank acceptance of the situation. He had not contended at his trial that the complainant had actually consented to have sex with him. The Judge sentenced the appellant to 2 years imprisonment which he considered showed mercy to him. He refused leave to apply for home detention.

[10] On behalf of the appellant Mr Hembrow submitted that the Judge did not give due weight to the youth of the appellant nor to his lack of previous convictions. He took issue with the Judge’s characterisation of the appellant as opportunistic, articulate and worldly and said this was in conflict with the verdict of the jury on the rape charge which indicated consent. The appellant’s case had always been that the appellant believed on reasonable grounds that there was consent. Counsel also emphasised that the appellant had said he was unaware that the appellant was intoxicated.

[11] Mr Hembrow also took issue with the Judge’s understanding of cases cited by the Crown prosecutor, and their relevance to the circumstances of the appellant

and his offending. He argued that imprisonment was an inappropriate sentence or alternatively a much shorter term of imprisonment should have been imposed. He also said that leave should have been given to apply for home detention.

[12] Ms Jelaś for the Crown said that it was open to the trial judge to find, as he did, that the complainant had not consented to sexual intercourse. That finding was not inconsistent with the acquittal of the appellant on the rape charge. The complainant had not truly consented even though the jury’s verdict indicated the appellant thought she was consenting. A term of imprisonment of 2 years was accordingly within the range available to the Judge although it was towards the highest point of that range.

[13] Ms Jelaś argued that lack of knowledge of the level of intoxication of the victim could not be classed as a mitigating factor. Had he been aware of it he would have been convicted of rape. Ms Jelaś said that the Judge was entitled to take the view that the gravity of the offending excluded the possibility of home detention.

[14] It is clear that, having presided at a trial in which the jury convicted the appellant on the lesser of two alternative charges, the trial Judge was required to determine the factual basis of the offending for the purposes of sentencing the appellant. The only limits were those set by the verdicts of the jury particularly that acquitting the appellant of rape.

[15] The Judge sentenced the appellant on the basis that despite his youth he was sexually experienced to a degree and he had offended in a structured way over a considerable period of time. The appellant had taken advantage of the complainant albeit under the reasonable belief she was consenting to his conduct. Our impression from the sentencing notes is that the Judge saw this as predatory behaviour by the appellant even accepting that he did not appreciate the extent of her intoxicated state. In our view it was open to him to so find. The appellant himself was sober. He had only met the complainant that evening and had talked to her for a short period.

[16] It is well established that the culpability of the offence under s134 of the

Crimes Act 1961 of having sexual intercourse with a girl aged between twelve and

sixteen years varies considerably according to the circumstances of the offending R v Peachey CA92/01 17 July 2001. The maximum sentence is 7 years imprisonment. The Judge saw the appellant’s culpability in the present case as requiring a term of imprisonment. That decision was open to him despite the youth of the appellant, and the absence of any previous offending, because of the calculated and planned nature of his conduct and his recklessness as to the age of his victim. It is relevant also that she did not truly consent to have intercourse with him even though he thought she was consenting. The appellant’s evidence was that the possibility he was in error only came into his mind because:

...she was sort of putting her head back and closing her eyes for quite a while and then she’d open them and look at me again and then after a while they would close again and that’s when I started to wonder just how much she had drunk... When I started questioning what I was doing and I stopped after a couple of minutes and began to get off her and then she sat up.

[17] While these circumstances warranted the Judge taking the view that the offending was at the more serious end of the scale for offending by someone of the appellant’s age such as to make imprisonment appropriate, we do not accept that a term of 2 years was warranted. It is certainly the case that imprisonment has been imposed in cases of offending under s134(1) where there has been a marked disparity between the ages of the offender and the victim: (R v Tomkinson CA49/03

16 February 1994; R v Graham CA400/97 26 November 1997 and R v K CA92/98

15 June 1998). There was however no such disparity in this case although the appellant’s relative degree of sexual experience was appropriately seen as relevant by the Judge.

[18] In this case we are satisfied that a sentence of two years imprisonment was an excessive punishment in all the circumstances and that a sentence of 12 months would have more appropriately reflected the seriousness of the circumstances of the particular offending.

[19] In relation to home detention in R v Hakiwai CA19/03 30 May 2003 this

Court said:

[10] The role of the Court under the Sentencing Act 2002, in relation to home detention as a means of serving a sentence of imprisonment, is set out in s97(3):

The Court must grant the offender leave to apply to the New Zealand Parole Board under section 33 of the Parole Act 2002 for home detention unless the court is satisfied that it would be inappropriate to grant leave taking into account-

(a) the nature and seriousness of the offence; and

(b) the circumstances and background of the offender; and

(c) any relevant matters in the victim impact statement in the case; and

(d) any other factor that the court considers relevant.

The starting point under this provision is that leave to apply for home detention generally will be granted in respect of a qualifying sentence. Leave will not be granted, however, if there are factors concerning the nature and seriousness of the offending, the circumstances and background of the offender, what is said in the victim impact statements or otherwise, which satisfy the Court it would be inappropriate to grant leave. Under the previous legislation the sentencing court’s decision had been characterised by the Court as “the removal of a barrier, rather than the granting of home detention:” R v Barton [2000] NZCA 283; [2000] 2 NZLR 459 at para 12. That remains the position under the

2000 Act. The Court is required to identify those cases where home detention would be inappropriate. Thereafter the Act provides that decisions are for the Parole Board to make. Under s97(3) the determination in each case is essentially a matter for the broad discretionary judgment of the sentencing court, but having regard to the purposes of rehabilitation and reintegration served by home detention provisions, the threshold for granting leave should not be set too high.

[20] In this case the seriousness of the offending is fully recognised in the imposition of a term of imprisonment and the circumstances do not otherwise put the case into the category of those in which it is inappropriate to grant leave. Leave to apply for home detention is accordingly granted.

[21] The appeal against sentence is accordingly allowed, the sentence of 2 years imprisonment is quashed and a sentence of 12 months imprisonment substituted. The appellant is also granted leave to apply for home detention.

Solicitors:

Crown Law Office, Wellington

Solicitors: