The appeal is allowed. The sentence imposed in the District Court for the count of sexual violation by rape is quashed and replaced with a sentence of seven years imprisonment. The sentence of three years imprisonment for the count of sexual violation by unlawful sexual connection remains unchanged. These sentences are to be served concurrently.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1] This is an application by the Solicitor-General for leave to appeal against the sentence of four years imprisonment imposed on the respondent after his convictions for sexual violation by unlawful sexual connection and rape.
[2] The respondent was a party to the rape, rather than the principal offender. The Solicitor-General argues that the sentence imposed was manifestly inadequate because:

(a) The starting point for a contested rape set out in R v A [1994] 2 NZLR 129 (CA) was not adopted;

(b) The Judge failed to assess adequately the respondent’s culpability for the totality of his offending;
(c) The Judge gave an overly generous discount for the respondent’s personal circumstances.
[3] Before considering these grounds of appeal, we will set out the background to the offending.

Background

[4] As noted earlier, the respondent was charged along with a co-offender, Mr Abdulah. Mr Abdulah was convicted as the principal party to the rape and was sentenced to seven years imprisonment. It had been hoped that Mr Abdulah’s appeal against conviction and sentence would be heard jointly with the present application, but it became necessary to adjourn Mr Abdulah’s appeal and the present application was heard separately.

Facts

[5] The factual background was summarised by the sentencing Judge, Judge Behrens QC, in his sentencing notes as follows:

[4] The facts are that the victim, a drunk woman, was walking home.... She needed to use a toilet and approached your workplace. You, Mr Ahmed, led her inside to a toilet. You told her to sit on the toilet seat and to remove her tights and underpants. She did so and you took part in that too. You then told her to get on her knees and perform oral sex on you. She had your penis in her mouth for a short time before she stood up.

[5] At around this time, you, Mr Abdulah, came into the toilet. There was a discussion between the two of you in, I presume, Oromo language. The victim then turned around so that her back was to the two of you. The evidence is not clear, but it seems that she was guided by the shoulders to turn around by one of you and also made a decision to turn around herself. She bent forward, or was bent forward by one of you. She said she knew one of you was going to have sex with her, but that she did not consent to that. She then said that one of you put your penis into her vagina and had sex with her.

[6] During that time, she said that one of you said, “Shut up bitch or I’ll kill you.” She said she was crying at the time, but was not making any other noise. At the time, she did not know who it was who was raping her. Eventually another man opened the toilet door and yelled at the two of you. She left the toilet and walked out onto the street, leaving her clothes behind.

[7] You, Mr Ahmed, followed her and tried to kiss her and say you were sorry. She told you to, “Fuck off.” Originally, Mr Abdulah, you were interviewed as a witness, but vaginal and cervical swabs taken from the victim resulted in your semen being found around her vagina and in her cervix. So you were charged and the Crown case was that you were the person who raped her and as you know, the jury found that that was so and that Mr Ahmed, you helped.

[8] Your explanation, Mr Abdulah, that it was the victim who masturbated you after she came into the toilet where you were, was not accepted by the jury. You both took advantage of this drunk young woman, whose victim impact statement describes the effect on her of your offending. Her life came to a stop. Her studies and her relationships were destroyed. She is now, as she puts it, building a new life.

District Court sentencing

[6] The Judge dealt first with the rape count. He said that, while he accepted the jury’s verdict his impression was that, in terms of the rape offence, Mr Abdulah had taken advantage of what the respondent had done, that there had been no plan by the two of them to carry out the rape and that the assistance given by the respondent was not significant. The Judge said, “It was more your presence, rather than anything you did, that was of significance.”
[7] The Judge noted that the Crown had contended for a starting point of two years for the assistance to help Mr Abdulah carry out the rape. The Judge adopted a starting point of 18 months imprisonment.
[8] In relation to the charge involving oral sex, the Judge recorded that the Crown had argued for a starting point of around four years imprisonment and the Judge accepted that submission, given the part which the respondent had played in the whole affair, and the fact that the respondent had been the one who had started things off in the guise of helping the victim. The Judge said there were no matters of personal aggravation but that he would give credit for the respondent’s lack of previous convictions and for the tragic life and mental health issues he had. He noted that the respondent had been on remand in prison for nearly two years. The Judge therefore discounted the four year starting point down to three years imprisonment for the charge involving oral sex and sentenced the appellant to one year for his part in the rape, and then ruled that these should be served cumulatively. Thus the appellant was sentenced to a total of four years in jail.
[9] We now turn to the issues raised by the Solicitor-General’s appeal.

Different stance on appeal

[10] Counsel for the Solicitor-General, Mrs Wrigley, accepted that the sentencing Judge had correctly summarised the position taken by the Crown at sentencing. At that stage the Crown sought a starting point of four years imprisonment for the oral sexual violation and a further cumulative term in the region of two years to reflect the rape charge. Thus, the Crown was contending for a term of imprisonment in the region of six years.
[11] Mrs Wrigley frankly acknowledged that the position now taken by the Solicitor-General is at odds with that taken at sentencing. However, she argued that in this case the inadequacy of the sentence imposed was so great that the Solicitor-General should be permitted to take a different stance from that taken by the prosecutor at the sentencing. For this proposition, she relied on this Court’s observation in R v Tipene [2001] 2 NZLR 577 at [11] that:

... The fact that the Crown has taken a particular stance, with which the sentence imposed is not inconsistent, is relevant to the appearance of justice when the appropriateness of the sentence is considered on appeal. There may be occasions when, notwithstanding a perception of injustice on the part of the Crown in changing its stance, an appellate Court may be unable to avoid the conclusion that there is an even greater perception that justice has gone wrong because the sentence imposed is so manifestly inadequate.

[12] We propose to consider the individual grounds of the appeal before reverting to this issue and determining whether the Tipene test is met in this case.

Starting point

[13] Mrs Wrigley argued that the sentencing approach adopted by the Judge led to him undervaluing the respondent’s culpability for the total offending. In particular, she argued that the Judge was wrong to treat the oral sexual violation as the lead offence: rather, he should have adopted the starting point of eight years imprisonment for the rape, in line with the decision of this Court in R v A.
[14] Mrs Wrigley said that once the Judge came to consider the rape offence, having dealt with the oral sexual violation, he characterised the steps taken by the respondent to assist Mr Abdulah in committing the rape as limited. She accepted that, looking at that part of the incident in isolation, the Judge’s comment was correct: the respondent’s role was limited to standing guard and saying to the victim either “don’t say anything” or “shut up bitch or I’ll kill you” (the victim being unclear precisely who said what). However, she said this gave an artificial picture of what actually happened. In particular, she highlighted the fact that the respondent had confined the victim in the toilet cubicle, had removed her lower clothing and had positioned her to be violated. She said that the removal of the victim’s lower clothing occurred before the oral violation, and indicated that the respondent intended to rape the victim himself. It appears that this did not happen because Mr Abdulah interrupted, and it was he who carried out the rape.
[15] Mrs Wrigley said that when a perspective was taken of the entire incident, the respondent’s overall culpability was similar to that of Mr Abdulah. While Mr Abdulah had actually raped the victim, his role had otherwise been limited. On the other hand, the respondent had taken the preparatory steps outlined above, and had orally violated the victim.
[16] Mrs Wrigley said the approach for which the Solicitor-General contends in this appeal was that taken by this Court in similar circumstances in R v Inoke [2008] NZCA 403. In that case, Mr Inoke had orally violated the victim and had been a party to a rape which subsequently took place. But he had taken an active role in the incident leading to the rape, and this Court had effectively endorsed a sentencing starting point near to that used for the actual rapist, even though Mr Inoke was charged only as party to the rape. A seven year sentence, reflecting Mr Inoke’s youth (16 years old) was upheld.
[17] Mrs Wrigley also relied on R v Tawha CA296/02 26 February 2003. In that case the Court also adopted a starting point of eight years for Mr Tawha in circumstances where he was a party to the anal violation of the victim. The sentence was substantially lower, due to significant mitigating factors. But it was the adoption of the eight year starting point which Mrs Wrigley emphasised.
[18] Mrs Wrigley argued that, if the approach taken in Tawha were applied in this case, a starting point in excess of eight years would be justified, reflecting the obvious aggravating factors of the vulnerability of the victim, due to her obvious intoxication and the fact that the offending was carried out by two offenders.

Totality

[19] As noted earlier, Mrs Wrigley’s principal argument was that the Judge’s sentencing approach was wrong, and that he should have sentenced on the basis that rape was the lead count. She said that if this had been done, and the approach outlined above had been followed, the Judge would then have needed to adjust the starting point to reflect the additional offending involved in the oral sexual violation. She said that this would have meant that the starting point would have been between nine to ten years imprisonment.

Personal circumstances

[20] The Judge considered that there were mitigating factors personal to the respondent which warranted a substantial discount. In particular he referred to:

(a) The respondent’s lack of relevant previous convictions;

(b) The respondent’s poor mental health;
(c) The respondent’s “tragic life” (the respondent had come to New Zealand from Ethiopia as a refugee, and had endured hardships before his arrival here).
[21] The Judge had allowed a discount of one year from a starting point of four years for the oral sexual violation, and had also allowed a discount of six months from the starting point of 18 months for the rape. Mrs Wrigley said that this overall discount of 18 months for personal mitigating factors was approximately 27 per cent of the combined starting points, which was almost twice the allowance made for similar characteristics in relation to Mr Abdulah, who was arguably of better character than the respondent. She submitted that this discount was too high. She accepted that the report received by the Court under the Criminal Procedure (Mentally Impaired Persons) Act 2003 had indicated that the respondent suffered from a major depressive disorder and from post traumatic stress disorder, but she highlighted that the report also said that the report writer did not believe there was any direct relationship between the respondent’s mental illness and the alleged offences. She argued that a discount of no more than ten per cent was justified for these factors.

Submissions for the respondent

[22] Counsel for the respondent, Mr Jefferies supported the sentencing approach taken by the Judge. He said that the Judge had correctly assessed the lesser role in the offending taken by the appellant and had rightly given a discount for his extreme personal circumstances. He highlighted the fact that the respondent is Ethiopian, unable to read, write or speak English, and suffers from psychiatric conditions. He disputed that the Court could obtain any proper guidance from Inoke or Tawha, given the different factual circumstances.

Our assessment

[23] We accept Mrs Wrigley’s submission that the sentencing approach adopted by the Judge understated the seriousness of the role that the respondent played in the overall offending. We agree that this is a case, similar to Tipene where it is appropriate to allow the Solicitor-General to adopt a position which is inconsistent with that which the prosecutor adopted at sentencing, given the perception of injustice which would remain if the sentence was left undisturbed.
[24] We also accept the submission that the appropriate sentencing approach was to treat the rape as the lead offence and to sentence on a totality basis. Adopting the starting point from R v A of eight years, an uplift would be required for the fact that there were two offenders, and also to reflect the vulnerability of the victim. A further uplift would be required when assessing the matter on a totality basis to reflect the oral sexual violation. On the other hand, a substantial reduction is required to reflect the fact that the respondent was not the rapist, but a party to the rape. We think that when all those factors are taken into account a starting point in the region of nine years was required. If an allowance in the region of 15 per cent were made for the mitigating factors, that would leave a sentence of about seven and a half years. Taking into account the approach which this Court adopts to Solicitor-General appeals, which involves doing no more than is necessary to correct any error in the sentencing court, we consider that the appropriate sentence on appeal is one of seven years imprisonment. As that sentence is assessed on a totality basis, we leave undisturbed the sentence imposed by the Judge for the oral violation charge, but direct that it be served concurrently with that for the rape count, rather than cumulatively, as the Judge ordered.

Result

[25] We grant leave to appeal and allow the appeal. We quash the sentence of imprisonment for one year imposed in the District Court on the count of sexual violation by rape and substitute a sentence of seven years imprisonment. The sentence of three years imprisonment on the count of sexual violation by unlawful sexual connection remains unchanged. The sentences are to be served concurrently. So the total sentence is one of seven years imprisonment, instead of the total sentence of four years imprisonment imposed in the District Court.

Solicitors:
Crown Law Office, Wellington for Appellant
Jefferies & Raizis, Wellington for Respondent

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