R v Ahsin CA226/03 [2004] NZCA 412 (16 February 2004)

Last Updated: 10 December 2018

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985 IN THE COURT OF APPEAL OF NEW ZEALAND

CA226/03

THE QUEEN

v

JOHN AHSIN

Coram: Glazebrook J Hammond J O'Regan J

Appearances: R P Chambers for the Appellant
A Markham for the Crown

Judgment
(on the papers): 16 February 2004

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

Introduction

[1] The appellant, Mr Ahsin, was found guilty by a jury following a trial in the Manukau District Court in May 2003 of one count of sexual violation by rape. On
17 June 2003 M E Sharp DCJ sentenced Mr Ahsin to a term of eight years imprisonment. He now appeals against that sentence on the ground that the sentence was in the circumstances of the case manifestly excessive.

[2] This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001, the relevant materials, including written

R V JOHN AHSIN CA CA226/03 [16 February 2004]

submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, having been considered by the members of the Court who have conferred and agreed upon this judgment.

The facts

[3] Mr Ahsin and the complainant (whom we designate as "X") had known each other for about thirteen years. X is a sister of a former de facto wife of Mr Ahsin. There is no suggestion that there had been a prior sexual relationship between X and Mr Ahsin. X's evidence was that she had never regarded Mr Ahsin in that light.

[4] At the relevant time X and Mr Ahsin were both residing at the same address in Otara, Auckland. X and her partner held a party to celebrate their son's first birthday. X consumed a very considerable amount of alcohol. Mr Ahsin had been at another address drinking with some friends. He then arrived at the Otara residence as the party arranged by X and her partner, was finishing. Mr Ahsin sat with X and two other relatives. He continued drinking for a time with them before he drove these two relatives to their homes. He then returned to the Otara address in the early hours of the morning. By now X had gone to bed in her bedroom, fully dressed. She had fallen into a deep sleep. X's seven year old son was sleeping next to her on the double bed.

[5] X awoke to find Mr Ahsin on top of her having sexual intercourse. She was unable to push Mr Ahsin off and lapsed into a more or less comatose state again. By the time she fully awoke, Mr Ahsin had left the room. X was naked from the waist down. Her track pants and underwear were beside the bed. X was distressed and rang her partner to report what had happened; she also complained to other family members. The police were called.

[6] Mr Ahsin consented to a video interview with the police. He claimed that X had been "coming on" to him on the balcony before she went to bed. That line was maintained at trial. The jury patently rejected the assertion of consent or a reasonable belief in consent.

The sentence in the District Court

[7] Sharp DCJ held that it was an aggravating feature of the offence that Mr Ahsin "opportunistically" took advantage of a heavily intoxicated victim; and that there was particular harm of an emotional nature caused to X by this offending. The Judge could identify no mitigating factors. She took a starting point of eight years imprisonment, having regard to R v A [1994] 2 NZLR 129 CA. She considered that term of imprisonment to be the least restrictive outcome that the court could impose.

The appeal

[8] Mr Chambers submitted that the Judge had given insufficient weight to Mr Ahsin's belief that the victim had "given indications that she would be prepared to have sex with [him]". The jury rejected a claim of a reasonable belief in consent. It is not open to Mr Ahsin to re-advance his view of the facts by way of mitigation at his sentence. And the Judge noted (as she was entitled to do for sentencing purposes) her view that "there had been absolutely no hint of invitation by X to Mr Ahsin".

[9] Then it is submitted that the Judge had applied the "tariff" in R v A (supra) "too rigidly". It was said that in the result the sentence of eight years imprisonment is manifestly excessive.

[10] In R v A this Court held that in a contested case of rape, committed by an adult, the appropriate sentence is eight years imprisonment, with allowance then being made for any aggravating or mitigating features. This Court acknowledged that in some cases there may be distinct features which might justify going below the eight years starting point.

[11] We entirely agree with counsel for the Crown that no such features exist in the present case. Mr Ahsin is no stranger to the criminal law process. He has convictions for a number of offences of dishonesty; drug offences (including possession for supply of LSD); blood alcohol offences; disobedience of court
orders and he has served several terms of imprisonment. He has not come to terms with his drug and alcohol problems. He was assessed as a high risk of reoffending on a Departmental statistical risk assessment scale and as having low motivation to change on account of his continued denial of the offending. This assessment is confirmed by what was advanced to this Court on the appeal.

[12] In this case advantage was taken, and quite deliberately, of an unconscious woman. This was a serious aggravating factor; as was the distinct breach of trust occasioned by sexually violating a member of the household in which Mr Ahsin had resided.

[13] In our view, there is force in the Crown submission that, given these aggravating factors, the Judge could well have adopted a higher sentence than the eight years actually imposed.

[14] Mr Chambers referred us to R v G (CA335/94, 3 November 1994 CA). That case concerned distinctly different circumstances – sixteen different charges of a sexual character – and in any event that offending on 1 September 1993 was prior to the increase in the maximum penalty for sexual violation. It is of no assistance in this case.

Conclusion

[15] There was no error of principle in the sentence imposed. The sentence actually imposed was fully justified.

Solicitors:

R Chambers for the Appellant A Markham for the Crown