R v N (CA354/03) [2004] NZCA 396 (1 March 2004)

Last Updated: 21 October 2018

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT IS PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

PERMANENT ORDER MADE IN THE DISTRICT COURT UNDER S140 CRIMINAL JUSTICE ACT 1985 PROHIBITING THE PUBLICATION, IN ANY REPORT OR ACCOUNT RELATING TO THESE PROCEEDINGS, OF THE NAME OF THE PERSON CONVICTED OF THE OFFENCE

IN THE COURT OF APPEAL OF NEW ZEALAND

CA354/03

THE QUEEN

v

N(CA354/03)

Hearing: 24 February 2004

Coram: Chambers J Robertson J John Hansen J

Appearances: A Stevens for Appellant
E M Thomas for Crown Judgment: 1 March 2004

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

[1] This is an appeal against the sentence of five years’ imprisonment imposed in the District Court at Dunedin on 29 August 2003 on the ground that the sentence was manifestly excessive.

R V N(CA354/03) CA CA354/03 [1 March 2004]

[2] For about a year prior to the date of offending, the appellant had been in a sexual relationship with the complainant, although they remained at their own respective addresses. Mid last year, the complainant had been withdrawing from the relationship but on 10 July 2003 the two of them kept a long-standing engagement to attend the opening of a bar. During the course of the evening both consumed a substantial quantity of alcohol.

[3] Early the following morning they went to a party with others and while there, when together in a spa, the appellant’s sexual advances were rejected. Shortly afterwards they left the party in a taxi with other guests. They were the last to be dropped off. At her address the complainant again shunned the appellant’s attentions, went into the house, undressed and went directly to bed. The appellant followed her, also undressed and climbed into her bed.

[4] He then climbed on top of the complainant, placing both his hands around her neck, strangling her by exerting great pressure with his two thumbs while his fingers remained firmly clasped around her neck. He said “I am going to kill you” and further that he was going to rape. During this assault, the complainant was lying on her back with her head and neck off the edge of her bed. The appellant slid down her chest and held both her hands with one of his hands and pushed the complainant's legs apart with his other hand. After several attempts, he entered his erect penis into the complainant’s vagina.

[5] After ejaculating in her vagina, the appellant said “All women are whores” and “every woman I’ve been with has dealt to me”. He went into the kitchen and picked up a 380mm carving knife, went back into the bedroom, straddled the complainant and said he was going to kill himself and asked her to in fact kill him. While the knife was present the complainant was fearful that she would be stabbed although he did not threaten her in any way.

[6] Shortly afterwards the appellant made an attempt to hang himself from a roof beam in the adjoining lounge. The Police were called and until they arrived the appellant, who knew they were coming, passively waited.
[7] The appellant generally admitted the facts as outlined and told the Police that he knew was in danger of losing the complainant as a partner and that the rape was an attempt to gain some ‘ownership’ of her.

[8] At that time and thereafter he appeared remorseful and expressed sorrow for what had happened. He asked that his apologies be passed on to the complainant.

[9] This 34 year old man has two previous convictions, each of which related to tension and distress following the breakdown of domestic relationships.

[10] Having reviewed the background and the submissions which had been made, Judge O’Driscoll referred to R v A [1994] 2 NZLR 129 indicating a starting point in a contested case of eight years’ imprisonment.

[11] The Judge noted the personal circumstances of the appellant and the need for him to receive counselling and treatment. Having assessed the mitigating factors raised by his counsel, and aggravating factors which he noted included a threat to kill, the breach of trust and the fact that the offending took place in the victim’s home, the Judge concluded that the appropriate sentence was five years’ imprisonment.

[12] In written submissions in this Court, and in her oral elucidation, counsel noted that R v A held that the starting point was not necessarily the norm. She stressed that Section 8 of the Sentencing Act 2002 required that the gravity of particular offending and the degree of culpability be taken into account. She drew attention to mitigating matters including:

• the plea of guilty at the earliest possible opportunity,

• the fact that the appellant had suffered multiple emotional stresses, was vulnerable and in need of psychological assistance,
• the appellant was assessed at being at low risk of re-offending,

• he was genuinely and deeply remorseful,

• he was willing to meet financial compensation of the type sought by the complainant,
• the behaviour was out of character,

• this man had acknowledged his need for help and a willingness to take it.

[13] We accept that those are all factors which needed to be weighed and considered by the sentencing Judge. However, apart from the fact that the Judge did not make particular reference to the appellant’s willingness to provide assistance for the complainant’s teenage son to attend a course, all were clearly in the Judge’s mind.

[14] Mrs Stevens placed heavy emphasis on the fact that the Judge made no mention of the appellant’s offer of amends under section 10 of the Sentencing Act 2002. It is easy to speculate as to whether this was an oversight or for some other reason. The information available at sentencing was that the sale of the appellant’s vehicle would cover his debts but that he would have nothing left thereafter. We are informed that, in the District Court, counsel advised that the parents had raised money to lend to the appellant so that a payment in the vicinity of $2,000 could be made to enable the complainant’s son to undertake the course which she thought would be good for him.

[15] It was not appropriate for the Judge to make such an order against an impecunious man and it rather appears that the offer was being held out as a means of obtaining a shorter jail term, rather than a genuine indication of remorse and a true willingness to compensate. It is not to be overlooked that, down to the present time, the appellant has not voluntarily made such payment. We are not satisfied that the failure to specifically refer to it means that the sentence was otherwise outside of the properly available sentencing discretion.

[16] Reference was also made by Mrs Stevens to cases where sentences of less than five years’ imprisonment had been imposed in cases of sexual violation by rape. They were truly exceptional in every sense including R v K (T245/96), Auckland Registry, 15 October 1996. In our judgment, the facts of this matter are so dissimilar that the previous cases referred to provide no real assistance.
[17] In each of them, there were strong submissions by the complainants for sentences which did not involve immediate terms of imprisonment. In contrast, we have been informed by the Crown that this complainant does not support this appeal.

[18] The submission that the sentence should be reduced to one of not more than two years so that there could be an order made as a condition of the sentence requiring psychological treatment would, in our judgment, involve a perversion of the sentencing process. The appropriate term of imprisonment cannot be manipulated so as to provide the Court with jurisdiction to impose conditions.

[19] What had to be assessed as well as all the mitigating factors were the serious aggravating circumstances. Although (in terms of R v A) eight years was a starting point, there were factors which had to increase that figure and which had to be evaluated together with the mitigation.

[20] Tragically this is a case where a man with deep-seated and long-term problems had not received the assistance which he needed although the urgency of his getting help had been demonstrated during other periods of domestic turmoil. On this occasion he acted in a thoroughly inappropriate way with long-term detrimental consequences for the victim.

[21] We are unable to see how it could be said that the final sentence of five years’ reached by the Judge in the Court below was not within the discretion properly available to him. He had virtually halved what could have been the appropriate sentence but for the major mitigating factors which Ms Stevens identified.

[22] We could not therefore conclude that this sentence was, in those circumstances, manifestly excessive. The appeal is accordingly dismissed.

Solicitors:

Crown Law Office, Wellington