R v D (CA370/06) [2007] NZCA 74 (19 March 2007)

Last Updated: 8 February 2014

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

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˝ NOTE: DISTRICT COURT ORDER SUPPRESSING PUBLICATION OF APPELLANT'S NAME REMAINS IN FORCE.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA370/06 [2007] NZCA 74

THE QUEEN

v

_{D (CA370/06)}

Hearing: 8 March 2007

Court: Ellen France, John Hansen and Williams JJ Counsel: A S Greig for Appellant

C L Mander for Crown

Judgment: 19 March 2007 at 11 am

_{JUDGMENT OF THE COURT}

_{The appeal is dismissed.}

REASONS OF THE COURT

_{(Given by John Hansen J)}

R V D (CA370/06) CA CA370/06 19 March 2007

[1] The appellant was indicted on six counts of unlawful sexual connection, two of which were representative. On 15 August 2006 he pleaded guilty to one charge of sexual violation by unlawful sexual connection occasioned by the penetration of the complainant’s anus with his penis. The Crown offered no evidence on the other counts in the indictment.

[2] On 13 September 2006 Judge McKegg sentenced the appellant to four and a half years imprisonment.

[3] He appeals against that sentence on the ground it is manifestly excessive.

Background facts

[4] Between November 2004 and July 2005 the appellant and the complainant were in a sexual relationship. Consensual anal intercourse was initially part of their sexual activity, although the complainant had indicated previously she preferred it were not.

[5] On 21 January 2005 the complainant wrote to the appellant setting out her concerns, and making it clear she did not consent to any further activity of this nature. This letter was given to the appellant on 23 January 2005. On the evening of

22 May 2005, at the complainant’s house, the appellant initiated sexual activity with the complainant. This initially involved vaginal intercourse, but the appellant then began having anal intercourse with the complainant. When he commenced this he was aware she did not consent, but notwithstanding her objections, he continued his actions.

The sentence

[6] The Judge observed the appellant was on clear notice the complainant would not consent to anal intercourse. He identified this Court’s judgment in R v A [1994] 2 NZLR 129 (CA), as fixing a starting point for a contested rape of

eight years, and observed that in the later case of R v Castles CA105/02

23 May 2002 this Court held the same starting point should apply generally to the anal rape of a person of either sex in the absence of any particular aggravating features.

[7] The Judge considered the appellant was entitled to a substantial discount for his guilty plea, the fact he had no relevant previous convictions, and his remorse. He made a three and a half year allowance, resulting in an end sentence of four years and six months imprisonment.

Submissions

[8] On behalf of the appellant, Mr Greig submitted the starting point adopted by the learned District Court Judge of eight years imprisonment was too high. He accepted that the starting point for a contested rape, as set out in R v A was eight years. He said in the circumstances of this case, because the appellant had pleaded guilty, a lower starting point should have been adopted.

[9] He next submitted that from that lower starting point, a greater allowance should have been made for the guilty plea and the other mitigating factors. He submitted the fact that the relationship continued after the incident, the subject of the conviction, entitled the Court to speculate as to the real motives behind the complaint. Mr Greig further submitted that the Court erred in failing to take into account the trauma suffered by the complainant was not as great as those cases where the attacker is a stranger.

[10] For the Crown, Mr Mander said the Judge appropriately adopted the starting point of eight years imprisonment. He referred to a number of authorities of this Court that applied the starting point in R v A to anal rape.

[11] He further submitted that the allowance given in this case could only be viewed as generous.

Discussion

[12] The starting point for a contested rape is eight years: R v A. This Court in

Castles said at [22]:

We agree with counsel for the Crown that the Judge erred when he said that the “usual sentence” in the case of forceful penetration of the anus or vagina with a weapon would be five or six years. But whereas the Courts have been able to fix upon a period of eight years as the 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 sexual connections does not admit of a common starting point. Acts of digital penetration, for example, normally attract a lower starting point. (Our emphasis.)

[13] Mr Greig’s submission that because R v A refers to a starting point for a contested rape, a lower starting point should be taken where there is a guilty plea, subject to yet a further allowance for that plea, is misguided. It is obvious that such a course would allow an offender to enjoy a double benefit from the guilty plea. No authority was cited for such a proposition, and it is contrary to established sentencing principles. In the light of that appellate authority the starting point adopted by the learned sentencing Judge was undoubtedly correct.

[14] The appellant also submitted that the trauma suffered by the victim would be less than if she had been attacked by a stranger. Implicit in this submission is the suggestion that offending within a marriage, or a relationship is somehow less culpable. There is no general principle to that effect: R v N (an accused) [1987] 2 NZLR 268 at 270 (CA). Whether there are circumstances which amount to aggravating or mitigating features will be case specific: R v Accused (CA272/90) [1991] 2 NZLR 277 at 279 (CA).

[15] We are satisfied that this is not a case where the circumstances lead to a lesser sentence. Firstly, because of the letter mentioned at [5], the appellant was in no doubt that his behaviour was not being consented to. Secondly, while the Judge acknowledged that a number of influences shaped the personality of the complainant,

he was satisfied that abuse had figured largely in the life of the complainant for some considerable time. That is apparent from a reading of the victim impact statement. It is clear from that document that the complainant has been significantly traumatised by this offending.

[16] In this case the Judge has made a very substantial allowance for the guilty plea, the appellant’s lack of previous relevant offences, and his remorse. Such an allowance must be viewed as generous. In R v B CA211/03 1 September 2003, the accused was convicted after trial of one charge of sexual violation by unlawful sexual connection occasioned by the penetration of the complainant’s anus by his penis. He was sentenced to six years imprisonment. There are some similarities to the present case, in that the complainant was B’s fiancée. This Court noted the aggravating feature of the breach of trust involved in violating his fiancée in a manner he knew she would not have consented to. This is analogous to this case where the appellant violated his partner in this manner, notwithstanding that he had received a letter from her clearly stating that she did not consent to such activity. This Court viewed the sentence imposed on B as lenient.

[17] Even allowing for the fact that the appellant pleaded guilty, the sentence of four and half years imposed in the circumstances of this case must also be viewed as lenient.

[18] This is an appeal devoid of merit. It is dismissed.

[19] The District Court granted the appellant permanent name suppression.

Solicitors

Crown Law Office, Wellington