R v L CA115/05 [2005] NZCA 352; [2006] 3 NZLR 291; (2005) 22 CRNZ 381 (18 July 2005)

Last Updated: 16 January 2018

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PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139, CRIMINAL JUSTICE ACT 1985. ORDER PROHIBITING PUBLICATION OF NAME OR PARTICULARS IDENTIFYING APPELLANT.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA115/05
_CA132/05

THE QUEEN

v

_{L (CA115/05)}

Hearing: 22 June 2005

Court: O'Regan, Chisholm and Salmon JJ Counsel: P J Davey for L

B J Horsley and E A Gambrill for Crown

Judgment: 18 July 2005

_{JUDGMENT OF THE COURT}

A Ms L’s appeal against conviction is dismissed.

2. The Solicitor-General’s appeal against sentence is allowed, the sentence of four and a half years imprisonment is quashed, and a sentence of five

_{and a half years imprisonment is substituted.}

R V L (CA115/05) CA CA115/05 18 July 2005

_REASONS

_Introduction

(Given by Chisholm J)

[1] A High Court jury found the appellant guilty on one charge of attempted sexual violation and on one charge of sexual violation. She was found not guilty on three further charges of sexual violation. At the time of the offending the appellant was aged 49 years and the complainant, a male, 15 years. The trial Judge, Laurenson J, imposed a sentence of four and a half years imprisonment for the sexual violation and a concurrent sentence of three years imprisonment for the attempted sexual violation.

[2] In her appeal against conviction the appellant alleges, first, that the verdicts were unreasonable or could not be supported by the evidence and, second, that misdirections by the trial Judge resulted in a miscarriage of justice. The Solicitor- General’s appeal against sentence is on the basis that the sentence imposed for the sexual violation was manifestly inadequate and wrong in principle. Both appeals were heard together.

Background

[3] The appellant and the complainant’s mother are cousins. They enjoyed a close relationship and the complainant treated the appellant as an aunt. He frequently stayed at the appellant’s home. It was not uncommon for younger members of the appellant’s family and younger members of the complainant’s family to sleep in the same bed as the appellant.

[4] At trial the complainant’s evidence about the attempted sexual violation was relatively brief. Having referred to incidents some days earlier when sexual overtures by the appellant were not carried any further after the complainant asked her to stop, the complainant described events that took place in the appellant’s bed at the beginning of March 2003:

... when we went to sleep I remember her hugging me from behind, we were sharing the same blanket and she got me [to] turn over and started kissing me. She asked me to pull my underwear down ... She grabbed my penis and tried to put it in her vagina but I wouldn’t let it go in. She tried doing it a couple of times but then I stopped and told her I couldn’t do it. I was too afraid so I got up and said goodnight, and went to sleep.

It is clear from later passages that they remained in the same bed after this incident. The complainant was not cross-examined about the incident.

[5] In relation to the charge of sexual violation on which the jury returned a guilty verdict, it was the complainant’s evidence that on 15 March 2003:

.. we had sex ... this time I was on the bottom and she was on the top ... she told me to get on top at first and I told her I didn’t want to do it and she said she would get on top ... She asked me to take off my singlet and my shorts then she got on top of me ... she started kissing me and she started kissing my neck. Then she started giving me hickies on my chest ... then she asked me was I sure if I had sex before, and I told her no. Then she asked me to take off my underwear. I took it off and she got on top of me and put my penis in her vagina. Then she started moving up and down. It was a weird feeling, I couldn’t stop it. She just kept on going and moaning. I just lay still and she was still moving up and down. She asked me if I was coming and I didn’t know what that meant, and she kept on asking and I just nodded my head. Then she stopped and lay on top of my chest.

The complainant also said that he did not want to have sex with the appellant and that he pretended to be happy. Apart from putting to the complainant that he had never had sex with the appellant (to which he responded “she did”), counsel for the appellant did not cross-examine the complainant about this incident.

[6] At the conclusion of the Crown case counsel for the appellant sought a discharge under s 347 of the Crimes Act 1961. We understand that the issue of consent was at the forefront of this application. Counsel for the appellant indicated to the Judge that if the application was unsuccessful the defence would be that none of the alleged offending took place and that if the jury accepted that the events alleged by the complainant did occur the defence would be that there was insufficient evidence to establish that the complainant had not consented. The s 347 application was dismissed.

[7] The appellant gave evidence. She denied that she had ever had sex with the complainant or had tried to do so. Issues about consent and her belief concerning consent did not arise.

The Judge’s summing-up

[8] All the grounds of appeal alleging misdirections relate to the Judge’s directions concerning the attempted sexual violation.

[9] The Judge directed the jury that the Crown must prove, first, that the accused formed an intent to commit the crime of sexual violation and, second, that she did some act for the purpose of actually carrying that intent into effect. He said that although both these elements were important, the second required particularly careful consideration. Mr Davey argued that the Judge was wrong to focus on the second element. We do not think that there is anything in that point. Given that the defence was a complete denial that the events had occurred, it is not surprising that the Judge emphasised the second element. Nothing that he said could have been construed by the jury as an invitation to ignore the first element. Indeed, he told the jury both were important. Moreover, as will be explained shortly, he later returned to the first element.

[10] In accordance with s 72(2) of the Crimes Act the Judge then explained to the jury that whether particular acts were done for the purpose of actually committing a crime, as opposed to thinking about it or preparing to make the attempt, was a question of law that he had to decide. He continued:

... if you accept the boy’s evidence i.e.-

“She grabbed my penis and tried to put it in her vagina but I wouldn’t let it go in. She tried doing it a couple of times but then I stopped her and told her I couldn’t do it. I was too afraid so I got up and said goodnight and went to sleep” -

I direct you as a matter of law that the accused’s actions do amount to an attempt to commit the crime as charged. First of all, there is the physical acts referred to, then there is the evidence of the boy, if accepted, that he stopped her, which indicated that he did not consent. The evidence that he continued to stop her after she persisted could indicate that she must have

known he was not consenting and she had no reasonable ground for thinking that he would.

Having told you as a matter of law that the accused’s actions, if accepted by you, do amount to an attempt, it still remains for you as the jury to decide as a matter of fact whether the actions described by the boy did occur. That is for you to determine.

Mr Davey submitted that there were two misdirections: first, it was for the Judge, not the jury, to decide in terms of s 72(1) whether the acts went beyond preparation; second, the Judge failed to direct the jury that the first element as to intent needed to be determined by them. We do not accept that there was a misdirection in either of those respects. As to the first point, the Judge’s direction reflected the roles of the Judge and jury as explained in R v Ostler and Christie (1941) NZCR 318 (CA) at

344. The second point would have had merit if there had been no further directions concerning the element of intent. But there were.

[11] Immediately before the jury retired to consider their verdicts the Judge explained that he would be ascertaining from counsel whether there were other matters that should have been addressed. As a result of Mr Davey’s concern about the failure to direct on the first element the jury was recalled and the Judge gave a further direction:

Mr Davey raised the matter, and I think very reasonably. It is in relation to count one, the attempt. You remember that I told you that I had to decide as a matter of law for a start whether there was evidence to support the charge. You then had to go on to decide the factual side of it. So just as there is no doubt about it, I want to say this to you again. Having told you as a matter of law that the accused’s actions, if accepted by you, do amount to an attempt, it still remains for you as the jury to decide as a matter of fact whether the actions described by the boy did occur, and whether they occurred deliberately on the part of the accused, and whether they occurred without the boy’s consent and without any belief on the accused’s part, based on reasonable grounds, the boy did consent.

Leaving aside for the moment whether this direction accurately described the nature of the intent that had to be proved by the Crown, we are satisfied that this further direction meets Mr Davey’s complaint that the Judge failed to direct the jury that they needed to decide the intent element. This was also reinforced by later directions.

[12] After the jury had been deliberating for some hours they asked “Can we please reclarify the law associated to indictment one, in relation to “Attempt” and clarify the points of consent. As per the Judge’s summary”. The Judge responded:

[3] What I want to say to you is this. In order to prove the crime of attempting to commit sexual violation, the Crown must prove two things.

[i] That the accused formed an intention to commit the crime of sexual violation, namely, the deliberate connection between her genitalia and the boy’s penis, without his consent, and without any belief on reasonable grounds that he would consent.

[ii] That the accused did some act for the purpose of actually carrying out that intention into effect.

The Judge then read to the jury the complainant’s evidence about the attempted sexual violation.

[13] Obviously the jury was struggling with the concept of attempted sexual violation. Within a short time they asked the Judge to repeat his summing-up on that topic. The Judge repeated his summing-up (as outlined in [9] and [10]) and also repeated that the jury had to decide whether the actions described by the boy occurred deliberately and without the boy’s consent and without any belief on the part of the accused on reasonable grounds that he would consent.

[14] This brings us to the pivotal issue arising from the summing-up: whether the Judge’s directions to the jury accurately described the nature of the intent to be proved by the Crown on the attempted sexual violation charge.

Intent required for attempted sexual violation

[15] Section 72(1) of the Crimes Act provides:

72 Attempts

(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

What do the words “having an intent to commit an offence” mean in the context of attempted sexual violation? Counsel for the appellant and counsel for the Crown disagree about the answer.

[16] According to Mr Davey the answer is provided by Shepherd v R HC AK T.192/91 20 February 1992 which proceeded on the basis that the prosecution must prove an intent to carry out the proscribed sexual activity without the consent of the victim. On the other hand, Mr Horsley claimed that R v Khan [1990] 2 All ER 783 (CA) reflects the correct approach and that the prosecution must prove the statutory elements of sexual violation, namely, intent to have sexual connection with the complainant, without the complainant’s consent, and without believing on reasonable grounds that the complainant consented.

[17] In Shepherd v R Anderson J was required to make a pre-trial ruling on a charge of attempted sexual violation. Apart from submitting that the acts of the accused were too remote to constitute an attempt, counsel for the accused also argued that even if the acts were not too remote they were not sufficiently probative to allow the jury to draw the necessary inferences of intent to justify conviction. Thus it was necessary for Anderson J to examine the mental element required for attempted sexual violation.

[18] In his oral ruling the Judge noted that s 72(1) requires sufficiently proximate conduct to be linked with an intent to commit the alleged offence. He observed that s 128 defines sexual violation in terms requiring the absence of consent on the part of an alleged victim and the absence of belief on reasonable grounds as to that consent. The Judge continued:

It follows that if one combines the elements of s.72 and s.128 an accused must intend to have proscribed sexual activity with a person and intends that at the time such activity shall occur it shall be carried out:

(a) without that person’s consent, and

(b) without the accused believing on reasonable grounds that the alleged victim is consenting.

As a matter of logic, of course, if one intends to have proscribed sexual activity with a person without that person’s consent at the time it shall occur, one’s mind must be directed to a future situation where the intended conduct

will be carried out with the offender knowing that the victim is not consenting. Thus, the second limb of the definitions of rape and unlawful sexual connection specified in s.128(2) and (3) have no practical application when considering a charge of attempted sexual violation. It follows that in order to obtain a conviction for attempted sexual violation or assault with intent to commit sexual violation pursuant to s.129 Crimes Act 1961, the Crown must prove beyond reasonable doubt that the accused intends to commit the proscribed sexual activity and intends that it will be carried out without the consent of the victim.

Anderson J also commented that during the course of dialogue between the Bench and Bar counsel for the Crown had drawn an analogy with attempted murder which requires a specific intent to murder in terms of s 167(a) of the Crimes Act. We will return to that analogy shortly. On the facts before him the Judge concluded that the conduct of the accused went beyond mere preparation and the application was dismissed. There was no appeal.

[19] R v Khan involved an appeal against conviction for attempted rape. The trial Judge summed up on the basis that the principles relating to consent were to be applied in attempted rape in exactly the same way as they applied to rape. The statutory definition of rape before the Court (contained in s 1(1) of the Sexual Offences (Amendment) Act 1976) was:

For the purposes of section 1 of the Sexual Offences Act 1956 ... a man commits rape if- (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and (b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it ...

It can be seen that although the wording differs from s 128 of the Crimes Act and the English provision uses the state of mind of recklessness whereas the New Zealand provision uses absence of belief on reasonable grounds, the underlying requirements concerning absence of consent and absence of belief in consent are similar. The relevant parts of the English legislation relating to criminal attempts (s 1(1) of the Criminal Attempts Act 1981) is also couched in similar language to s 72(1) of the Crimes Act.

[20] Russell LJ delivered the judgment of the Court of Appeal. Having considered the statutory definition of rape, s 1(1) of the Criminal Attempts Act, and the observations of the criminal division of the Court of Appeal in R v Millard &

Vernon [1987] Crime LR 393 which involved a charge of attempting to damage property, Russell LJ said at 787:

In our judgment an acceptable analysis of the offence of rape is as follows: (1) the intention of the offender is to have sexual intercourse with a woman; (2) the offence is committed if, but only if, the circumstances are that (a) the woman does not consent and (b) the defendant knows that she is not consenting or is reckless as to whether she consents.

Precisely the same analysis can be made of the offence of attempted rape: (1) the intention of the offender is to have sexual intercourse with a woman; (2) the offence is committed if, but only if, the circumstances are that (a) the woman does not consent and (b) the defendant knows that she is not consenting or is reckless as to whether she consents.

The only difference between the two offences is that in rape sexual intercourse takes place whereas in attempted rape it does not, although there has to be some act which is more than preparatory to sexual intercourse. Considered in that way, the intent of the defendant is precisely the same in rape and in attempted rape and the mens rea is identical, namely an intention to have intercourse plus a knowledge of or recklessness as to the woman’s absence of consent. No question of attempting to achieve a reckless state of mind arises; the attempt relates to the physical activity; the mental state of the defendant is the same. A man does not recklessly have sexual intercourse, nor does he recklessly attempt it. Recklessness in rape and attempted rape arises not in relation to the physical act of the accused but only in his state of mind when engaged in the activity of having or attempting to have sexual intercourse.

If this is the true analysis, as we believe it is, the attempt does not require any different intention on the part of the accused from that for the full offence of rape. We believe this to be a desirable result which in the instant case did not require the jury to be burdened with different directions as to the accused’s state of mind, dependent on whether the individual achieved or failed to achieve sexual intercourse.

The Court recognised that its reasoning would not apply to all attempts to commit an offence. It gave the examples of causing death by reckless driving and reckless arson where, because no state of mind other than recklessness is involved in the offence, there can be no attempt to commit it.

[21] That decision was applied in Attorney General’s Reference (No 3 of 1992) [1994] 2 All ER 121 which arose from a directed acquittal by a jury on a charge of attempted aggravated arson. The relevant statutory provision (s 1(2) of the Criminal Damage Act 1971) provided:

(2) A person who without lawful excuse destroys or damages any property ... - (a) intending to destroy or damage any property or being

reckless as to whether any property would be destroyed or damaged; and (b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence.

An acquittal was directed by the trial Judge on the basis that it was impossible in law to convict under s 1(2) if all that could be proved was that the defendant intended to damage property, being reckless as to whether the life of another would be thereby endangered. In his Reference the Attorney General asked the Court of Appeal whether on a charge under s 1(2), in addition to establishing a specific intent to cause damage by fire, it was sufficient to prove that the defendant was reckless as to whether life would thereby be endangered. The Court of Appeal concluded that the prosecution had to show an intention to damage the property plus the remaining state of mind required for the offence of aggravated arson and answered the Reference in the affirmative. It could see no reason to distinguish R v Khan which it considered “accords with common-sense, and does no violence to the words of the statute”.

[22] The mental element required for attempted rape has also been considered in Australia. In R v Zorad [1979] 2 NSWLR 764 the trial Judge had directed the jury that it was necessary for the Crown to prove that when the accused made the attempt to penetrate he was either aware that the woman was not consenting or he realised she might not be consenting and he was determined to have intercourse with her whether she was consenting or not. The Court of Criminal Appeal, New South Wales, accepted that the element of intent had been correctly put to the jury. In the particular circumstances of that appeal it was unnecessary for the Court to explore the issue in any depth.

[23] Another Australian decision, R v Evans [1987] 30 A Crim R 262, did explore the mental element required for attempted rape in considerable depth. When directing the jury as to attempted rape the trial Judge referred to the mental element in the same terms as the mental element for rape, that is to say, knowledge that the woman was not consenting or reckless indifference as to whether she was consenting or not. In the Court of Criminal Appeal, South Australia, counsel for the appellant argued that an analogy could be drawn with attempted murder. The Court rejected that analogy. At 273 Bollen J explained:

You cannot attempt to kill unless you intend to kill. It is impossible to attempt to kill by recklessness. But you can attempt to go on with an act of intercourse with reckless indifference to the wishes of the victim. If a man sets out to perform an act of intercourse on a woman with reckless indifference to her wishes but fails to achieve penetration his effort to do so has in every sense been an attempt to do something which is prohibited by law. He has attempted rape.

Earlier (at 267, 268) King J explored the same issue. Arriving at the same conclusion, he reasoned that unlike attempted murder, attempted rape concerns the accused’s state of mind, not as to the consequences of his conduct, but as to a state of facts the existence of which renders his conduct criminal. The third member of the Court, Jacobs J, agreed with the reasons given by the other two Judges. The appeal was dismissed.

[24] With the exception of Attorney General’s Reference, the English and Australian cases were decided before Shepherd v R. Clearly they were not brought to the attention of Anderson J. Consequently he did not have the benefit of the reasoning contained in them, particularly the difficulty in attempting to draw an analogy between attempted sexual violation and attempted murder.

[25] It seems to us that one of the primary reasons for the different approach in Shepherd v R is the point in time at which Anderson J considered the accused’s state of mind would need to be assessed. He approached the matter on the basis that the state of mind was directed to “a future situation where the intended conduct will be carried out with the offender knowing that the victim is not consenting”. It was on this basis that he concluded that the second limb (involving the absence of a belief on reasonable grounds that the victim was consenting) could have no practical application. That approach can be compared with R v Khan which proceeded on the basis that the offender’s state of mind needs to be assessed when the offender “engaged in the activity of ... attempting to have sexual intercourse”. The summing- up in R v Zorad, which was approved by the Court of Criminal Appeal, was also specific that the state of mind to be proved by the Crown must exist “when he made the attempt to penetrate”. Although R v Evans did not specifically refer to the timing aspect, the reasoning in that decision is consistent with the Khan and Zorad approach.

[26] If the accused’s state of mind is assessed at the time of the attempted sexual violation the difficulties encountered in R v Shepherd fall away. The focus is on the attempt, not on some future event that does not happen. Given that approach the statutory definition in s 128(3) can be applied without difficulty:

(3) A person has unlawful sexual connection with another person if that person has sexual connection with the other person –

(a) Without the consent of the other person; and

(b) Without believing on reasonable grounds that the other person consents to that sexual connection.

Thus in the context of an attempt the accused must intend at the time of the attempt to have sexual connection with the complainant, without the consent of the complainant to the activity which amounts to attempted sexual connection, and without believing on reasonable grounds that the complainant consents to that activity.

[27] Before concluding this discussion it is appropriate to return briefly to the issue of attempted murder which appears to have influenced the reasoning in Shepherd v R. It is well established that in a case of attempted murder the Crown must prove an actual intent to kill: R v Murphy [1969] NZLR 959 (CA). In that case an appeal against conviction was allowed because the trial Judge had directed the jury that the accused could be convicted of attempted murder either if he intended to kill or if he intended to cause bodily harm which he knew was likely to cause death and was reckless whether death ensued or not. When allowing the appeal the New Zealand Court of Appeal followed the decision of the English Court of Appeal comprising a Bench of five in R v Whybrow (1951) 35 Cr App R 141 in which it was explained at 146, 147:

In murder the jury is told – and it has always been the law – that if a person wounds another or attacks another either intending to kill or intending to do grievous bodily harm, and the person attacked dies, that is murder, the reason being that the requisite malice aforethought, which is a term of art, is satisfied if the attacker intends to do grievous bodily harm. Therefore if one person attacks another, inflicting a wound in such a way that an ordinary reasonable person must know that at least grievous bodily harm will result, and death results, there is the malice aforethought sufficient to support the charge of murder. But, if the charge is one of attempted murder, the intent becomes the principal ingredient of the crime. It may be said that the law,

which is not always logical, is somewhat illogical in saying that, if one attacks a person intending to do grievous bodily harm and death results, that is murder, but that if one attacks a person and only intends to do grievous bodily harm, and death does not result, it is not attempted murder, but wounding with intent to do grievous bodily harm. It is not really illogical because, in that particular case, the intent is the essence of the crime while, where the death of another is caused, the necessity is to prove malice aforethought, which is supplied in law by proving intent to do grievous bodily harm.

This reasoning is, of course, consistent with the reasoning in R v Evans which led the Court to reject the proposition that an analogy could be drawn between attempted rape and attempted murder. It is also consistent with the explanation in R v Khan about why there could be no attempt to cause death by reckless driving or reckless arson.

Adequacy of summing-up

[28] We are satisfied that the Judge correctly explained the mental element of attempted sexual violation to the jury when they returned to the Court as a result of the concerns expressed by Mr Davey (see [11]). This direction was repeated in response to the jury’s first question (see [12]) and was repeated again in response to the jury’s second question (see [13]).

[29] The only possible complaint about the summing-up is that the Judge did not specifically tell the jury that the state of mind had to be assessed at the time of the attempt. However, in all the circumstances we think that this is implicit and that in any event any technical deficiency in the summing-up could not have resulted in a miscarriage of justice.

Whether the verdicts were unreasonable

[30] As stated in R v Ramage [1985] 1 NZLR 392 (CA) at 393 the verdict of a jury will only be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence:

... if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant. It is not enough that this Court might simply disagree with the verdict.

That high threshold was recently affirmed by this Court in R v C CA82/04 5 August

2004.

[31] Mr Davey’s argument that the guilty verdicts on the attempted sexual violation and sexual violation were unreasonable or could not be supported focused on the consent aspect. In relation to the attempted sexual violation charge he claimed that the evidence did not support an absence of belief in consent and there was no evidence of any overt act from which that inference could be drawn. A similar argument is advanced in relation to the charge of sexual violation. Mr Davey also maintained that of itself the age difference between the appellant and complainant was not capable of supporting the verdicts.

[32] Although the complainant’s evidence in relation to the attempted sexual violation charge is relatively brief, we consider that it provided a foundation from which the jury was able to draw the inferences necessary to support a finding of guilt. We agree with Mr Horsley that the complainant’s evidence must be viewed in context. The evidence indicates that this Samoan teenager was deferential to his “aunt”. Before the offending occurred he had raised with the appellant the possibility of sleeping in the spare room but she insisted that he sleep with her in her room. When she initially made sexual overtures he asked her to stop and she complied. On the occasion of the attempted sexual violation he resisted her attempts to put his penis in her vagina “a couple of times” following which she abandoned her attempts. All of that evidence provided the jury with ample foundation to draw the inference that the complainant was not consenting and that the appellant did not believe on reasonable grounds that he was consenting.

[33] The guilty verdict on the sexual violation is in a similar category. It also needs to be placed in the context of the events already discussed. In addition, and importantly, there is the complainant’s evidence that he told the appellant “I didn’t want to do it”. Notwithstanding Mr Davey’s submissions to the contrary, it is our view that the jury was entitled to interpret this evidence as indicating that the

complainant did not want to participate in sexual activity (as opposed to not wanting to be on top). It is true that there was no evidence of coercion but, as Mr Horsley observed, that is not an element of the offence. Again we are satisfied that there was sufficient evidence to support the jury's verdict.

[34] This ground of appeal also fails.

Solicitor-General’s appeal against sentence

[35] At the time of sentencing the appellant was 51 years of age with four adult children. She had grown up in Samoa. When she was nine years of age she had been raped. She moved to New Zealand with her family in the 1960s and having left school in the fifth form worked in the manufacturing field. She was raped again when she was 19 years of age. The probation officer’s report indicates that this rape was much more violent and that she received counselling to help her deal with the ordeal. The appellant has no previous convictions. A psychiatric report indicates that after the appellant sought help in the year 2000 it was diagnosed that she was suffering from dissociate episodes and post-traumatic stress disorder. Currently she is suffering from mild to moderate depression.

[36] Having discussed the victim impact statement, aggravating and mitigating factors, and relevant provisions of the Sentencing Act 2002, the Judge turned his attention to sentencing guidelines. He noted that in R v Herbert CA70/98 21 May

1998 the Court of Appeal had made it clear that no distinction is to be drawn between male and female offenders in sexual abuse offending. The Judge noted that in that case four years of imprisonment was imposed on the female offender for sexual violation by sexual intercourse with a 10 – 11 year old boy over a period of one year, there having been a plea of guilty. Three decisions of the High Court (R v Manakau HC AK T233/09 30 January 2003; R v Matthews HC ROT T2/4757 20

June 2003; and R v Shaskey HC CHCH T23/03 14 August 2003) involving sexual violation by a female upon a male were discussed.

[37] The Crown’s stance that the offending in this case effectively amounted to sexual violation by rape and justified the eight year starting point indicated by the

Court of Appeal in R v A [1994] 2 NZLR 129 (CA) was noted by the Judge. He also noted defence counsel’s submission that account should be taken of the fact that the victim in this case was somewhat older than the victims referred to in the cases cited to him and that unlike the cases cited there had only been two occasions of offending in this case.

[38] Although the Judge accepted that the offending “was engendered in no small part as a result of [the appellant’s] upbringing including, in particular, the offending that occurred against [the appellant]”, he said that it was equally clear that it came about as a result of her own selfish sexual needs and that she had blithely ignored the position of trust that had placed her in a position where the offending could occur. He continued:

[24] I can see no logical reason why an 8 year starting point should not be adopted in this case and indeed, that this should be increased to take into account the aggravating factors which I have referred to and, in particular, the gross breach of trust.

[25] I am, however, required to take into account the requirement to achieve consistency in sentencing. The sentences in Herbert, Matthews and Shaskey, all indicate a starting point, including aggravating factors, of between 5 and 6 years imprisonment.

...

[27] The decisions in Matthews and Shaskey as I say, all provide a starting point of between 5 and 6 years. I find it difficult to reconcile these with the decision in Herbert, but it may be that the Court has tacitly at least accepted that, where what amounts to rape of a female occurs in relation to a male, the lack of actual physical invasion may justify a lesser level of sentencing. Be that as it may, I consider that, an appropriate starting point, taking into account aggravating features, is 6 years imprisonment.

Having accepted that her psychiatric condition would mean that any period of imprisonment would bear more heavily on the appellant, and having taken into account her previous record of good behaviour within her family and the community, the Judge concluded that a sentence of four and a half years imprisonment was appropriate for the sexual violation.

[39] According to counsel for the Solicitor-General the starting point should have been eight years imprisonment. While he acknowledged that rape, by its definition, remains a gender specific form of sexual violation, he noted that this Court affirmed

in R v A [2003] 1 NZLR 1 (CA) that the definition of “sexual connection” is gender neutral. He also noted that the starting point of eight years for a contested rape with no special features had been extended to anal rape: R v Castles CA105/02 20 May

2002 and Tawha v R CA396/02, 26 February 2003.

[40] Mr Horsley discussed changes in English and New Zealand legislation which, he submitted, reflected a growing emphasis on gender neutrality for sex crimes. He referred to the Sexual Offences Act 2003 (UK) and to the New Zealand Crimes Amendment Act 2005. He submitted that the current offending is equivalent in almost every respect to the rape of a female and that the Judge’s analysis based on the notion of penetration is spurious because, amongst other things, the merest penetration of the female genitalia constitutes rape and attracts a starting point of eight years. Mr Horsley submitted that there is no logical basis for applying a different tariff to the “rape” of a male by a female which can give rise to physical harm, amount to a physical invasion of the body, overpower the complainant’s right to elect what happens to his body and can produce emotional harm.

[41] Crown counsel submitted that if the Court finds that a starting point of eight years should have been adopted then the sentence of four and a half years was manifestly inadequate. He claimed that mitigating features were “minimal” and could not justify a credit of more than the 18 months given by the Judge. Mr Horsley suggested that the sentence should have been six and a half years imprisonment.

[42] In response Mr Davey submitted that the eight year tariff does not apply. He noted that for digital penetration starting points have ranged between two and five years after trial and before allowing for mitigating factors. His submission was that the Judge had correctly taken into account cases cited at sentencing where a starting point of less than eight years had been adopted and that this approach reflected the consistency required by s 8(e) of the Sentencing Act.

[43] Mr Davey noted that in R v Herbert this Court had upheld a starting point of five years imprisonment for non-consensual intercourse by a female with a young boy. He also noted that compared with the appellant’s offending R v Matthews, R v

Shaskey and R v Manakau all involved offending over a much longer period by a female upon much younger victims. He claimed that in all the circumstances the sentencing Judge would have been entitled to adopt a lower starting point than six years.

[44] In Mr Davey’s submission the risk of physical injury in the rape of a woman and the anal rape of either sex can be distinguished from the risk faced by a male victim of non-consensual intercourse with a female. Using digital penetration as an example, he said that the Court can and does take into account the different physical act involved. He also noted that rape of a female involves the additional fear of pregnancy. Mr Davey submitted that the emotional impact of offending should be taken into account on a case by case basis and that there is arguably a greater need for higher sentences in rape because of the higher incidence of that crime and the need for a general deterrent.

[45] Counsel for the appellant submitted that even if this Court decided that the starting point adopted by the Judge was too low, the sentence of four and a half years imprisonment was a substantial sentence which could not be regarded as manifestly inadequate given that under s 8(g) of the Sentencing Act the Court is required to impose the “least restrictive outcome that is appropriate in the circumstances”. He referred to numerous mitigating factors including absence of previous convictions at age 51, otherwise good character, generosity and willingness to assist her family and others within the community, psychological illness, rapes, and a violent relationship with her husband for approximately 12 years. Mr Davey submitted that it would have been open to the sentencing Judge to allow more than 18 months for these factors.

[46] We are grateful to counsel for their thoughtful submissions. In our view the critical issue is the appropriate starting point in this particular case. Because we are sitting as a divisional Court we do not consider it would be appropriate for us to attempt to determine the matter on any broader basis.

[47] It is common ground that the eight year starting point set by the five Judges in R v A [1994] 2 NZLR 129 applies to contested rapes which, by definition, are

confined to situations where a male rapes a female. Nor is it in dispute that that starting point has been extended to anal rape of either gender but not to other situations involving unlawful sexual connection. In R v Castles, which involved a Solicitor-General’s appeal against a sentence of two and a half years imprisonment for sexual violation involving the insertion of a broomstick into the male victim’s anus, this Court observed at [22]:

... whereas the Courts have been able to fix upon a period of eight years as a starting point for a rape with no special features and where no credit is available for a guilty plea (R v A [1994] 2 NZLR 129) - and the same starting point ought we think to apply generally to an anal rape of a person of either sex if there are no particular aggravating features - the variety of other unlawful other sexual connections does not admit of a common starting point. Acts of digital penetration, for example, normally attract a lower starting point.

In Tawha v R, which involved anal rape of a female, this Court cited R v Castles to support the proposition that there is “no warrant for any different response to forced anal intercourse than for rape”.

[48] Judging from his sentencing remarks, the Judge’s initial instinct was that an eight year starting point should be adopted. It seems that he was deterred from that course because he felt obliged to achieve consistency with the 5 - 6 year starting point utilised in R v Herbert, R v Matthews and R v Shaskey, all of which involved forced sexual intercourse by a female on a young male. However, it is important to note that the underlying issue in R v Herbert was whether the sentence of four years imprisonment was manifestly excessive. Thus the question of whether or not there should have been an eight year starting point did not arise. The only reason this Court found it necessary to determine the starting point in that case (which had not been articulated by the sentencing Judge and which this Court found to be five years) was that one of the grounds of appeal was that the sentencing Judge had failed to take into account the appellant’s guilty plea. For present purposes it is significant that having found that there were no reported New Zealand decisions involving exactly parallel facts this Court expressed the view:

... the principles are clear enough and children of either gender are required protection [sic] by the law from sexual exploitation by adult offenders of either gender.

We assume that it was these observations that led the sentencing Judge to comment that he found it difficult to reconcile R v Matthews and R v Shaskey with R v Herbert. In R v Matthews Baragwanath J proceeded on the basis that this Court had “endorsed” a five year starting point in R v Herbert. We do not think that that is entirely accurate because, as already mentioned, the issue whether the starting point should have been five years or eight years was not before the Court. This assumption that a starting point of five years had been endorsed seems to have flowed on to R v Shaskey.

[49] In our view the Judge’s initial instinct was right. Rather than requiring rigid adherence to a starting point of five to six years imprisonment in this case, 8(e) of the Sentencing Act required the sentencing Judge to take into account the eight year starting point as a highly relevant factor in offending of this nature. It seems to us that this approach would have been more in keeping with the observations as to principle contained in R v Herbert and the conclusion reached in R v A [2003] 1

NZLR 1 that sexual connection is gender neutral. Without wishing in any way to suggest a fixed starting point for offending of this nature, we consider that the appropriate starting point in this case was in the region of seven to eight years rather than the six years adopted by the Judge.

[50] Having reached that conclusion, we do not believe that the sentence of four and a half years imprisonment can stand. On the other hand, we accept Mr Davey’s submission that there are significant mitigating factors and that s 8(g) of the Sentencing Act, which requires the Court to impose the least restrictive outcome that is appropriate in all the circumstances, should be honoured. Taking into account all factors, particularly the fact that this is an appeal by the Solicitor-General, we believe that the sentence of six and a half years advocated by Mr Horsley is too high and that a sentence of five and a half years would be appropriate.

[51] The appeal against sentence is allowed, the sentence of four and a half years quashed, and a sentence of five and a half years substituted.

Solicitors:

Crown Law Office, Wellington