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Last Updated: 2 February 2018
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NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT
1985
IN THE COURT OF APPEAL OF NEW ZEALAND
CA27/2009 [2010] NZCA 114
BETWEEN THE QUEEN Appellant
AND AM (CA27/2009) Respondent
CA32/2009
AND BETWEEN AM (CA32/2009) Appellant
AND THE QUEEN Respondent
Hearing: 12 August 2009
Court: William Young P, Chambers, O'Regan, Robertson and Ellen France JJ Counsel: R M Lithgow QC for AM
D B Collins QC, S B Edwards and J Murdoch for Crown
H M Aikman QC as counsel assisting the Court
Judgment: 31 March 2010 at 11.30
am
R V AM (CA27/2009) CA27/2009 [31 March 2010]
JUDGMENT OF THE COURT
A AM’s appeal against sentence is dismissed.
B Leave to appeal is granted to the Solicitor-General and the
Solicitor- General’s appeal against the failure to impose
a minimum period
of imprisonment is allowed. A minimum period of seven years and six months
imprisonment is imposed.
C This case may be cited as R v
AM.
REASONS OF THE COURT
(Given by William Young P and Ellen France J)
Table of Contents
Para No
Sentencing for sexual offending [1] The role of this Court in setting tariffs [6] Statutory sentencing guidelines [17] R v A [21] Problems with R v A [27] New guidelines for rape and sexual violation by unlawful sexual
connection [29]
Culpability assessment factors [34] Planning and premeditation [37] Violence, detention and home invasion [38] Vulnerability of victim [42] Harm to the victim [44] Multiple offenders [45] Scale of offending [47] Breach of trust [50] Hate crime [51] Degree of violation [52] Mistaken belief in consent [53] Consensual sexual activity immediately before the offending [54] Offending against person with whom offender is in or has been
in a relationship [61]
The views of the victim [62]
The proposed bands [65]
The bands for sexual violation where the lead offence is rape, penile penetration of the mouth or anus or violation involving objects
(the rape bands) [88] Rape band one: 6-8 years [93] Rape band two: 7-13 years [98] Rape band three: 12-18 years [105] Rape band four: 16-20 years [108] The bands for other violation where unlawful sexual connection is the
lead offence (the USC bands) [113] USC band one: 2-5 years [114] USC band two: 4-10 years [117] USC band three: 9-18 years [120]
Starting date for application of the guidelines [125] The case at hand [128] Overview [128]
The facts in more detail
[131] The criminal process
[136] Impact on the victims
[140] AM
[141] The sentencing remarks
[146] The issues on appeal
[148] Disposition
[160]
Sentencing for sexual offending
[1] Sentencing for rape is currently based around what was said by this Court in R v A[1] even though that case, in some respects, has been overtaken by emerging evidence about, and evolving social attitudes to, rape[2] and gives little assistance in cases where the culpability of the offender is particularly high. As well, the structure of the guidance provided by R v A is now out of step with present sentencing methodology. An associated problem is that there are currently no guideline
judgments of this Court in relation to sexual violation by unlawful
sexual connection.
[2] We are satisfied that the time has now come for this Court to give
integrated sentencing guidance for offending involving
sexual violation and, as
part of this exercise, to review and update the R v A approach in
relation to rape. We have
chosen to do so in the context of the present appeal which demonstrates some
of the difficulties which have developed with sentencing
in this
area.
[3] In the minute which was sent to counsel before the hearing we
indicated our intention to set out guidelines not only for
rape and other forms
of sexual violation, but also indecent assault and inducing a child to do an
indecent act on a defendant. In
fact, we have dealt with only rape and other
forms of sexual violation. There are a number of reasons for this. The
submissions
we received focused on rape and sexual violation and we did not
receive much assistance in relation to indecency offending. The number
of cases
coming to this Court where the lead offence is an indecency offence is
comparatively small and we do not have a great deal
of experience of sentencing
in this area to draw on. In addition, the importance of the offender’s
previous record in setting
starting points in indecency cases means that a
different approach to sentencing methodology from that adopted in relation to
rape
and sexual violation may be appropriate in indecency cases. We intend to
deal with sentencing guidelines for indecency offending
at a later
date.
[4] In subsequent sections of this judgment we discuss: (a) The role of this Court in setting tariffs;
(b) Statutory sentencing guidelines; (c) R v A;
(d) The problems with R v A;
(e) New guidelines for rape and other sexual offending; and
(f) The case at hand.
[5] Two sets of guidelines are provided. The first of the guidelines is for sexual violation where the lead offence is rape, penile penetration of the mouth or anus or violation involving objects. The second of the guidelines is for other violation where unlawful sexual connection is the lead offence. To distinguish the two sets of
guidelines we call the first set of guidelines the “rape”
guidelines and the second set of guidelines the “USC”
guidelines.
The rape guidelines are found at [88] to [112] and the USC guidelines at [113]
to [124].
The role of this Court in setting tariffs
[6] Because this judgment is likely to attract some public attention
and in order to set the scene for an explanation of why
it is now desirable to
review R v A, it is necessary to explain briefly the role of this Court
in providing sentencing guidance and how that role has evolved in recent
years.
[7] Andrew Ashworth[3]
discusses the history of guideline judgments in England. It was not until
the 1970s that the English Court of Appeal began issuing
judgments containing
general guidelines on sentencing for particular offences. These
judgments, pioneered by Lawton
LJ, are described by Ashworth as setting
out:[4]
... general parameters for dealing with several variations of a certain type
of offence, considering the main aggravating and mitigating
factors, and
suggesting an appropriate starting point or range of sentences.
[8] The earliest cited instance of a guideline judgment is R v
Willis,[5] a case concerning
buggery and indecent assault which identified a sentencing bracket of three to
five years for cases not presenting
any aggravating or mitigating factors which
were set out (non-exhaustively) in the judgment. A similar guideline
judgment,
albeit without a systematic discussion of the main
aggravating or mitigating factors, was delivered in R v
Taylor,[6] a case
concerning unlawful sexual intercourse with a girl under the age of
16.
[9] Influenced by English developments, this Court also began to
give tariff guidance. In R v
Pawa[7] and R v
Pui[8] sentences
imposed for rape were reduced to bring them into line with “the existing
pattern of sentencing for sexual offences”
and this after, in the
Pui case, extensive review of sentencing decisions. Then,
in
R v Smith,[9] R v
Dutch,[10] and R v
Ulrich,[11] there were extensive
reviews of sentencing decisions in relation to drug offending. These five
cases are the first (or at least
amongst the first) New Zealand tariff
cases. They are characterised by the assumption that consistency would
flow from
a proper analysis of sentencing decisions and the reinforcement of
existing sentencing patterns.
[10] The leading texts on sentencing
practice[12] now identify over 50
judgments as “guideline judgments”.
[13] Saul Holt, however, argues
that, of these judgments, only six qualify as “genuine” guideline
judgments: R v A[14]
(sexual violation by rape); R v Terewi
[15] (cultivation of
cannabis); R v
Wallace[16] (dealing
in Class B Controlled Drugs); R v
Mako[17]
(aggravated robbery); R v
Taueki[18] (serious
violence); and R v
Fatu[19] (dealing
in and manufacturing of methamphetamine). R v
Hessell[20]
(discounts for pleas of guilty) can now be added to this list.
[11] Sometimes guideline judgments represent a judicial response to legislative change. For instance, the change in the tariff for rape which emerged from R v A was driven by an increase in the maximum sentence. Taueki resulted in part from dissatisfaction with the limited guidance which had been provided by R v Hereora[21] but was also a response to the changes in policy implemented by the Sentencing Act
2002. Fatu was a response to the reclassification of methamphetamine
from being a
Class B drug to a Class A drug.
[12] Other guideline judgments have been issued when the Court has
perceived a particular need for guidance. In Wallace sentencing
guidelines for commercial dealing in Class B drugs were provided as a response
to the increasing size and sophistication
of commercial drug operations.
Similarly, the judgment in Terewi
revised the previous tariff case, Dutch, to take account of the
increasing prevalence of cannabis cultivation and the development of hydroponic
cultivation techniques. This
revision occurred despite the fact that Parliament
had not opted to change the maximum penalty since 1975. In Mako the
Court opted to revise its previous guidance on sentencing for aggravated
robbery given in R v
Moananui.[22]
Although Mako noted that “there have been changes in
kinds and frequency of criminal conduct involving this offence and in
community
responses to it”,[23]
the key driver of the revision was the need to give more discretion to
sentencing judges and refocus the sentencing exercise on a
proper assessment of
the true culpability and criminality present in the offending, rather than
merely placing the offending into
a certain
category.[24]
[13] The development of guidelines has been associated with an
increased emphasis on structured sentencing.
[14] Current sentencing practice is based around a methodology which was first explicitly and authoritatively explained in Taueki. Under Taueki, the sentencing judge’s first step is to identify a starting point sentence which appropriately reflects the intrinsic seriousness of the offending. This “starting point” sentence is, at the next step, adjusted up or down to reflect circumstances which are personal to the offender (including a plea of guilty if there has been one). More recently there has been something of a development of the Taueki methodology in cases where there have been guilty pleas or assistance to the authorities. It is now seen as best practice to arrive at a provisional sentence which reflects all factors other than the guilty plea and/or assistance to the authorities, and then, in a third step, discount that provisional
sentence to allow for those factors. All of this is explained in
Hessell.[25] For
ease of
reference (rather than strict accuracy) we will treat this as encompassed by
the phrase “Taueki methodology”. This methodology has been
developed in respect of sentences of imprisonment and is only of assistance in
determining
how long such sentences should be (including notional sentences when
home detention is in issue).
[15] Heavily structured approaches to sentencing of this nature are not
universally popular (cf the “instinctive synthesis”
approach
favoured by the High Court of Australia, see Makarian v The
Queen[26]). But structured
sentencing has advantages in terms of consistency and transparency and is now
well embedded in New Zealand. Indeed
we are of the view that sentencing based on
instinctive synthesis would not be in conformity with the Sentencing Act, in
particular
s 8(e) (consistency) and s 31 (the duty to give reasons).
[16] Current usage of “starting point” (ie as the sentence
which appropriately reflects the intrinsic seriousness
of the offending)
has only become reasonably settled in the last five years or so. Previously,
the expression was used in
different ways, for instance as:
(a) A sentence which was broadly appropriate for offending of the type
(ie by reference to the charge) and which thus required
adjustment for
aggravating and mitigating features (whether intrinsic to the offending or
personal to the offender);
(b) A sentence which reflected the intrinsic seriousness of the offence
and any aggravating factors personal to the offender;
and
(c) A sentence which reflected all relevant considerations other than a
plea of guilty.
There are some categories of offence where it is difficult to exclude the
relevance of prior convictions from the starting point
assessment. Such
offences obviously include instances where prior offending is, by statute,
relevant to the maximum sentence
(eg driving while disqualified and blood and
breath alcohol offences). As well, prior convictions are treated as relevant to
the
assessment of the starting point for burglary, see Senior v
Police[27] and R v
Lowe.[28]
Statutory sentencing guidelines
[17] The mechanism of a sentence appeal does not provide an ideal process
for establishing guidance which goes beyond the facts
of the case at hand. In
the present case we have attempted to respond to this latter problem by the
appointment of Helen Aikman
QC as counsel to assist the Court. We are very
grateful to her for the broad range of material which she put to us. But we
remain
at something of a disadvantage in that we cannot have resort to
techniques (such as the issuing of exposure drafts and consultation)
which are
used when broadly comparable exercises are carried out by others.
[18] To address these (and no doubt other) difficulties associated with
the judicial development of sentencing guidelines, the
United Kingdom Parliament
sought initially to improve the process by establishing the Sentencing Advisory
Panel which provided advice
to the Court of Appeal. In 2004 it established the
Sentencing Guidelines Council which, for the moment, still works alongside the
Sentencing Advisory Panel, and which develops and promulgates sentencing
guidelines. The Sentencing Advisory Panel and the Sentencing
Guidelines
Council will shortly be replaced by the new Sentencing Council for England and
Wales, to be established under the Coroners
and Justice Act 2009 (UK). The
guidelines presently issued by the Sentencing Guidelines Council are very
largely based around existing
sentencing practice but the way in which they are
developed allows for a wide range of public consultation. Because sentencing
practice
in England and Wales is very similar to our practice, the work of the
Sentencing Guidelines Council has been influential in the way
in which this
Court deals with sentencing issues.
[19] A broadly similar system was proposed for New Zealand in the Sentencing Council Act 2007. The Sentencing Council provided for in that statute has not, in fact, been set up and is unlikely to be. But, ahead of its intended creation, a Sentencing Establishment Unit (SEU) which operated under the aegis of the Law Commission prepared a set of draft sentencing guidelines. As might be expected, these draft guidelines drew heavily from existing sentencing practice in New Zealand and were influenced by English sentencing guidelines. They were, however, intended to cover a much broader range of offending than the current
New Zealand Court of Appeal guideline cases. As we have already noted, the
Taueki methodology was developed in relation to cases where the primary
question is the length of the prison sentence. It is not particularly
well
suited to making decisions in cases on or below the custody threshold. For this
reason, the sentencing methodology proposed
by the SEU (which was intended to be
of universal application) differed appreciably from the Taueki
methodology. This means that some care is required in any assessment of
what was proposed by the SEU and its potential applicability
in the current
sentencing environment.
[20] What is primarily important from our point of view is that the
sexual offence guideline developed by the Sentencing Guidelines
Council and the
draft equivalent prepared by the SEU have been the subject of considerable
consultation with interested parties.
As this consultation is reasonably
recent, it does provide us with rather more information than would ordinarily be
available to
the Court in a guidelines case.
R v A
[21] In order to put R v A in context, it is necessary to refer
first to R v
Clark.[29]
There, and following English practice as represented by R v Billam,[30] the Court took the view that “a figure of five years should be taken as a starting point in a contested case”.[31] The Court went on:[32]
Aggravating features can include additional violence or indignities, acting
in concert with other offenders, the youth or age of the
victim, intrusion into
a home, kidnapping, the use of weapons, prolonged abuse. That list is not
meant to be exhaustive. ... Mitigating
features can include a guilty plea,
especially if it comes early and spares the complainant an ordeal, ... . The
youth of the rapist
can also be some extenuation, subject to the need to protect
the public ... .
[22] So that case established a five year starting point for rape in the
context where the expression “starting point”
had the meaning
explained in [16](a) above.
[23] Clark was decided when the maximum penalty for rape was 14
years imprisonment. With effect from 1 September 1993, the penalty for sexual
violation was increased to 20 years. The impact of the increases in maximum
penalty on the appropriate starting point was reviewed
by this Court in R v
A.
[24] In R v A the appellant had pleaded guilty to charges of
sexual violation, threatening to kill the victim, and assaulting an eight year
old
child. He was sentenced to nine years imprisonment, a sentence arrived at
by the Judge taking a starting point of eight years,
allowing three years for
aggravating circumstances (the presence of a knife, with threat to kill,
physical violence going beyond
what was intrinsic to the offence, the presence
of the child, and violence towards the child). He then reduced the sentence by
two
years to allow for early guilty pleas. The offender appealed to this Court
against his sentence.
[25] In its judgment on the sentence appeal, the Court referred to
Clark and noted that Billam was still the leading guideline case
in England. The Court also observed that it must necessarily have regard to the
increase in
maximum penalties (referring, in this context, to R v
Spartalis[33]). After
discussing the then current sentencing practice for rape in what was
described as the “spirit of the
recent legislative changes”
the Court went on:[34]
We think ... that in the light of the judicial experience since R v Clark
and the knowledge of what has transpired that is to be attributed to
Parliament, it should now be said that eight years is the starting
point in a
contested rape case.
While eight years should be the starting point, it is not necessarily the
norm. Regrettably there may be seriously aggravating features, as in the
present case. The cases of Clark and Billam illustrate,
non-exhaustively, what some of these may be. See also, for instance, gang rape
cases and what was said and done about
one of them in R v Misitea [1987]
2 NZLR 257. There, in a case of a very bad gang rape, it was said by this Court
at p 266 that, if persons shown to have been ringleaders had
been convicted,
sentences at or close to the then maximum of 14 years’ imprisonment might
very well have been appropriate.
Under the new regime the maximum of 20 years
would have to be considered.
On the other hand there may be features in a particular case justifying
going below, possibly even well below, the eight year starting
point. Some
such cases are listed in Billam and Clark. Another illustration,
depending always on the particular circumstances, may sometimes occur
when consent to
intercourse is refused after a degree of consensual sexual stimulation. An
extreme example is R v Brookes (1992) 14 Cr App R (S) 496, where a
sentence of three years for rape was upheld on the basis that the accused was
not aware of the refusal of consent until
the act of intercourse had begun. The
man’s persistence in such cases is criminal but some allowance for the
special facts
may be made in sentencing.
The present judgment therefore signals an increase in the starting point for
rape sentencing, and so probably in the average length
of rape sentences, but is
not intended to fetter sentencing Judges in assessing the gravity of particular
cases. In the end, almost
everything turns on the facts of the particular
case. It is part of the judicial responsibility to weigh these.
(Emphasis added.)
[26] R v A was thus an updating of Clark and the expression
“starting point” was used in the same sense. Also of relevance is
the heavy reliance placed on the
English case, Billam.
Problems with R v A
[27] As is apparent, the R v A approach uses the expression
“starting point” in a way which is not consistent with the Taueki
methodology. This, in itself, is of no great moment providing that counsel
and the judge appreciate that fact. But it can be confusing.
More
importantly, the Taueki methodology has significant advantages over the
sentencing methodology which is reflected in Clark and R v
A. In particular:
(a) The Taueki methodology encourages sentencing which is
fairly calibrated to offender culpability and facilitates reasonable
consistency
of sentencing response to the full range of offender
culpability.
(b) In contradistinction R v A identifies a single starting
point and thus contemplates a wide range of necessarily impressionistic
adjustments for aggravating and
mitigating factors. So it provides
comparatively little helpful guidance and does not, in itself, provide a
mechanism for the consistent
treatment of recurrent fact patterns.
[28] There are other, and to some extent related, problems with R v A:
(a) While the eight year starting point in R v A was intended to
be capable of adjustment down for mitigating factors intrinsic to the offence
– and it is possible to find cases
where starting points of less than
eight years have been adopted in practice, eight years has been treated as if it
were the minimum
available starting point, something which the Court plainly had
not intended.
(b) Sentencing outcomes tend to be closely clustered around eight year
starting points. This means that sentencing for rape
tends not to be closely
calibrated to offender culpability.
(c) The R v A guideline provides comparatively little
assistance in relation to sexual violation by unlawful sexual
connection.
New guidelines for rape and sexual violation by unlawful sexual
connection
[29] As is apparent from what we have said, the starting point approach
adopted in R v A requires revision. In accordance with the Taueki
methodology, this requires us to identify bands which, at the low end must
specify what will look like a minimum starting point.
We emphasise that the
object of the present exercise is to provide guidance for sentencing
judges.
[30] Average sentence lengths for rape have been increasing. For
instance in 1996 (shortly after R v A was decided and the maximum penalty
was increased), the average length of sentence was 87 months, whereas by 2005
the average sentence
was 99 months.
[31] We were taken to a broad range of material as to overall sentencing patterns in other jurisdictions. Although the definitions of offending and associated maximum sentences make comparisons difficult, New Zealand’s sentencing for sexual offending is significantly more severe than corresponding sentencing in Canada. Our eight year starting point (used, as it has been normally as a minimum) tends to result in distinctly longer terms of imprisonment than sentencing in England
and Wales for offending without any aggravating features, see R v
Millberry[35] and
the Sentencing Guidelines Council’s Definitive Sentencing Guideline -
Sexual Offences Act
2003.[36]
Australian sentencing patterns vary from jurisdiction to jurisdiction, but
on the whole, sentences for rape at the lower end of the
culpability continuum,
appear to be rather less severe than in New Zealand.
[32] We were not taken to any material that throws particular light on
public attitudes in New Zealand on current rape sentencing
levels generally. A
recent study by the Ministry of Women’s Affairs suggests that sentencing
severity is not, itself, a primary
consideration for rape
victims.[37] There has also been
some concern about the eight year starting point for rape which emerges from the
SEU’s consultation in relation
to its proposed sexual violation
guideline:[38]
A common theme in consultation feedback was concern that the eight-year
starting point for a contested rape was preventing offenders
being held
accountable for their offending at the lowest end of culpability.
This concern included that knowledge of
the likely penalty for cases at the
lowest end was inhibiting victims from reporting an offence (particularly when
the rape occurred
in the context of a prior relationship) and reducing the
likelihood of conviction (whether through a jury trial or otherwise).
The
[SEU] also considered that an 8-year starting point for cases at the lowest end
of culpability was too high and that some reduction
was required.
[33] We anticipate that under the reformulated guidelines, some offenders
(particularly those whose offending was not characterised
by aggravating
features) may receive lesser sentences than would be imposed under the current
practice, while others will receive
longer sentences. That is an intended
effect because the objective is to ensure properly graduated sentencing and
avoid the current
clustering of sentences around the eight-year mark.
Overall sentencing levels should not change
appreciably.
Culpability assessment factors
[34] Before setting out the culpability assessment factors, we make two
general observations.
[35] First, as this Court said in
Taueki,[39] the “first
point of reference” for the sentencing Judge is the Sentencing Act. Many
of the requirements of the Act are
mandatory and this judgment does not affect
those requirements. For example, s 9 of the Act sets out a number of
aggravating and
mitigating factors which must be taken into account. That said,
as noted in Taueki,[40] the
guidelines set out in this judgment will provide direction in the manner of
application of the requirements of the Sentencing
Act.
[36] Secondly, given the wide variety of circumstances that may be
encompassed by offending in this area, it is not possible to
provide an
exhaustive list of all the factors that may contribute to the culpability of an
offender. With that caveat, in the discussion
which follows we draw on various
factors that have been treated as relevant in the authorities and on
the approach
taken in the SEU and United Kingdom guidelines. We
group the various factors in a way that is intended to provide guidance
to
sentencing Judges. However, it is trite but important to emphasise that what
is required is an evaluation of all the circumstances.
Listing relevant
factors and setting out bands in the way we have done does not remove the need
for judgement. A mechanistic approach
is not appropriate.
Planning and premeditation
[37] The degree of planning and premeditation reflects criminality (s
9(1)(i) of the Sentencing Act is to the same effect).
Sexual violation of an
impulsive nature, although still serious, will generally be less so than that
involving grooming of a child
or young person, taking steps to get a victim
alone, giving the victim alcohol or drugs with a view to offending, and other
predatory
behaviour. As the SEU draft guidelines note, offenders who show
predatory sexual behaviour may be more likely
to offend in an opportunistic manner. They should not be treated as lacking
premeditation.
Violence, detention and home invasion
[38] There is violence inherent in any act of sexual violation. There
will usually also be some associated violence, for example,
pushing or pulling a
victim to the ground and holding him or her down. Where the associated violence
is more than mild, this is
another factor which increases culpability.
Further, it is necessary to assess the seriousness of the overall level of
violence,
whether inherent in the act of sexual violation or associated with it.
The more serious the overall level of violence, the more serious
the
offending.
[39] The reference to violence also encompasses threats of violence or
other harm to the victim and to others, the presence and
use of weapons and
other forms of intimidation designed to assert control or to prevent a victim
from reporting the offending. Section
9(1)(a) of the Sentencing Act similarly
refers to both actual or threatened violence or the actual or threatened use of
a weapon.
[40] An offender may abduct or detain the victim to facilitate
the offending conduct. As with violence, a level of
detention is inherent in
sexual offending of this nature because the victim is not free to leave. But,
where the sexual violation
involves detention or abduction beyond that, this too
increases the seriousness of the offending. Seriousness increases as the length
of detention increases.
[41] Where the offender breaks into the victim’s home or is
unlawfully in the home, that also increases the seriousness
of the offending as
s 9(1)(b) of the Sentencing Act provides.
Vulnerability of victim
[42] Section 9(1)(g) of the Sentencing Act applies. The section treats as an aggravating factor the vulnerability of the victim because of age or health or any other factor known to the offender. The United Kingdom guidelines refer to extreme
youth or old age of the victim as increasing the seriousness of the offending
and also suggest that offending will be more serious
the younger the child and
the greater the age gap between the victim and the
offender.[41] Disparity in age
between the victim and the offender may well be a factor in assessing the extent
of vulnerability.
[43] The other situations in which a victim may be considered vulnerable
are varied: mental impairment or physical frailty are
two examples, a victim who
is the subject of a protection order to protect him or her from the offender is
another.
Harm to the victim
[44] Harm is inherent in the offending. The more harmful the offending,
the more serious it is. Section 9(1)(d) of the Sentencing
Act applies.
Physical harm, for example, cuts and bruising, are indications that the
offending is more serious. Similarly, if the
offending involves unprotected sex
with the risk of pregnancy or infection or if it has those effects these factors
indicate more
serious offending. However, this is not to downplay the
psychological and other non-physical harm, for example, escalation of
psychological
problems and restrictions on the ability to go about the
victim’s daily life. The impact on others, such as children, other
family
members or those providing care and support to the victim is also
relevant.
Multiple offenders
[45] The fact that the violation involves more than one offender acting
together is a factor increasing culpability. In
discussing offending
more generally, the United Kingdom guidelines express this as an indication
that the offending will have
a more than usually serious degree of
harm.[42] The role and extent of
participation of the various offenders will of course be relevant in assessing
an individual’s
culpability.[43]
[46] As the SEU draft guidelines suggest, gang rape may fall within the
highest rape band despite the absence of other aggravating
factors.
Scale of offending
[47] More than one incident or extended abuse over a prolonged period of
time is more serious as is repeated rape or sexual violation
and associated
degradation or indignities. Examples of degradation include videotaping or
photographing the offending and offending
against the victim whilst others are
present. Cruelty or callousness also make the offending more serious (s
9(1)(e) of the Sentencing
Act includes “particular cruelty” as an
aggravating factor).
[48] Offending against multiple victims is another aspect which increases the culpability of the offender. The Crown submits that if there are multiple victims this should lead to a departure from the guidelines. We agree with the Crown submission that there is a risk that including such offending within the guidelines may not give adequate recognition to the harm caused to each victim. However, this aspect can be addressed in two ways. First, by the recognition that prolonged offending involving multiple victims particularly in the familial context warrants higher starting points in rape band four. Secondly, by application of the provisions in the Sentencing Act
relating to cumulative and concurrent
sentences[44] and the totality
principle.[45] In that
context we note that where there are multiple victims of offending
(particularly in cases where there have been offences over a number
of years
against multiple victims), the 20-year maximum for one offence is not the
maximum available sentence able to be imposed
for the series of
offending.
[49] On the other hand, a realistic view is to be taken where a number of
offences are committed as part and parcel of
what is, in substance, a
single incident. Offending in one case involving indecent assaults followed by
sexual violation by
rape may be no more serious than offending in another case
in which the only offence committed is sexual violation by rape. What
is
required is a common sense approach to overall
culpability.
Breach of trust
[50] Breach of trust is recognised in s 9(1)(f) of the Sentencing Act as
a factor which increases the culpability of the offender.
Offending within the
familial relationship involves a breach of trust and offending by a parent
against his or her child is particularly
serious. Other relationships of trust
may arise where a person has assumed some responsibility in relation to the
victim, for example,
the neighbour who regularly babysits the child or the
school sports coach.
Hate crime
[51] Ms Aikman submits that hate crimes against specific ethnic,
religious or sexual groups may well warrant specific mention
in the guidelines
as a factor increasing seriousness. We agree because these matters can be a
factor in sexual crime and are recognised
in s 9(1)(h) of the Sentencing Act as
an aggravating factor.
Degree of violation
[52] As the SEU draft guidelines suggest, seriousness increases as the
degree of violation increases, for example, use of a finger
as opposed to a
fist, or very brief penetration as opposed to a lengthy assault. Further, the
more force involved in the actual
violation the more serious the offending will
be.
Mistaken belief in consent
[53] There is authority for the proposition that to commit rape under a mistaken but unreasonable belief that there was consent is not a mitigating factor: R v Hill.[46]
Obviously, one of the purposes of the rape law reforms was to make violation
where there is a mistaken and unreasonable belief in
consent a crime. But it
does not follow or undermine that objective to say that the offender’s
culpability may be different
in such a case. The contrast is with the position
where the offender knows there is no consent. As in other areas of the criminal
law, negligent acts are seen as less serious than deliberate acts. If the
belief is grossly unreasonable that will not
avail the offender. There may, however, be cases where it is plain that the
belief, while unreasonable, was genuine and this factor
may reduce
culpability.
Consensual sexual activity immediately before the
offending
[54] Individuals have the right to choose the level of sexual activity in
which they wish to participate and sexual partners are
obliged to respect their
wishes. In R v A however it was recognised that, depending on the
circumstances, culpability may be diminished where there was consensual sexual
activity
immediately prior to the offending.
[55] The SEU draft guidelines follow the R v A approach in that
they suggest that in limited circumstances seriousness may decrease where the
offender and an adult victim have engaged
in consensual sexual activity just
before the offending. The SEU indicated that the relevance of this
factor depends on
the circumstances including the type of earlier consensual
activity, the similarity to what comprised the sexual violation, and
the timing.
The SEU draft guidelines would also make it plain that the seriousness of the
non-consensual act may outweigh any mitigating
effect of the prior consensual
activity.
[56] The United Kingdom guidelines take a similar approach noting first
that all of the non-consensual
offences:[47]
... involve a high level of culpability on the part of the offender, since
that person will have acted either deliberately without
the victim’s
consent or without giving due consideration to whether the victim was able to or
did, in fact, consent.
[57] The United Kingdom guidelines go on to say that planning an offence suggests a higher level of culpability than “an opportunistic or impulsive offence”.[48]
The guidelines continue:
2.20 In Millberry, the Court of Appeal established that the
offender’s culpability in a case of rape would be ‘somewhat
less’ in
cases where the victim had consented to sexual familiarity with
the offender on the occasion in question than in cases where the
offender had
set out with the intention of committing rape.
2.21 Save in cases of breach of trust or grooming, an
offender’s culpability may be reduced if the offender and
victim engaged
in consensual sexual activity on the same occasion and immediately before the
offence took place. Factors relevant
to culpability in such circumstances
include the type of consensual activity that occurred, similarity to what then
occurs, and timing.
However, the seriousness of the non-consensual act may
overwhelm any other consideration.
[58] The Crown opposed the inclusion of this factor as a
mitigating feature primarily on the ground that it undermined
the
non-consensual nature of the violation and so reduced its seriousness. Ms
Aikman supported the United Kingdom and SEU approach
essentially on the basis
there may be a correlation with lack of premeditation.
[59] This is a difficult and controversial issue. On balance
for the reason advanced by Ms Aikman we adopt the SEU’s
approach. This
has been the law in New Zealand at least since R v A. Further, after
extensive consultation, this is the position adopted by both the United Kingdom
and the SEU.
[60] We do not envisage that this factor will have a great deal of impact
in many cases. The focus is on assessing the seriousness
of the offending. The
sentencing judge has to proceed on the basis that the act constituting the
offence was non- consensual or
the belief in consent unreasonable. The
totality of the behaviour comprising the sexual violation then has to be
considered.
Offending against person with whom offender is in or has been in a
relationship
[61] Culpability is not reduced by any sense of entitlement associated
with a current or previous relationship. As this Court
has said, there is no
separate regime for sexual violation of a spouse or partner or those who have
previously been in a
relationship.[49]
The views of the victim
[62] To what extent should sentencing be influenced by the views of the
victim? This arises most acutely where the victim is seeking
a lenient
sentencing response.
[63] Where sexual offending occurs within a family or social group,
victims are frequently under pressure either not to involve
the criminal justice
system or to withdraw from it. Defying this pressure can have adverse
consequences in terms of family or social
rifts and resulting ostracism. The
circumstances of the present case, discussed at [140] below in which C has
suffered as a result
of the fracturing of the wider family, are not untypical.
Unsurprisingly, judges often treat victims’ calls for leniency with
caution, seeing them as likely to be the result of illegitimate family or social
pressure. Giving effect to such calls may lead
to increased pressure on other
victims. Judges are required to treat like cases alike. (See s 8(e) of the
Sentencing Act 2002.)
[64] On the other hand, it is not easy to see why a judge should ignore a
claim by victims that the harm suffered was minimal,
at least where the judge is
satisfied that illegitimate pressure has not been brought to bear on the victim.
To do so would be patronising.
As well, disregarding a victim’s view in
this context is likely to reduce the number of cases of rape which are
prosecuted.
No general rule can be set out. Judges will need to look at each
case keeping in mind that some calls for leniency are a result
of pressure. In
addition, crime is a public wrong and so the victim’s views are a factor
that, like others, normally cannot
overwhelm the outcome.
The proposed bands
[65] We accept the Crown submission that it is appropriate to have one
set of bands where the lead offence is rape, penile penetration
of the mouth or
anus or violation involving objects and a separate set of bands for other cases
of violation where another form of
unlawful sexual connection is the lead
offence. This equates with the SEU’s approach. While the SEU draft
guidelines do not
contemplate two sets of bands, they provide one set of
sentencing levels within each band for penile penetration of the mouth,
genitalia
or anus or use of objects and another for other forms of
violation.
[66] We need to explain first the grouping of the various forms of violation together in the first set of bands and secondly the separation out of other forms of sexual violation.
[67] As to the first grouping, R v A applied to rape. In a number of subsequent cases the Court has made the point that there should be no difference in approach in sentencing to forced anal intercourse or to violation by the use of an object. In R v Tawha this Court said there was “no warrant” for any different response to forced anal intercourse than for rape. [50] A similar approach was applied to the use of
an object in R v
Castles.[51]
Observations along the same lines in relation to violation
by anal penetration were made in R v
Tavinor,[52] R v
Tai,[53] R v K
(CA425-426/98),[54]and R v
Baird.[55] More
recently, in R v RHA
(CA63/07)[56] it was
suggested that R v A might be expected to apply by analogy to sexual
violation by anal intercourse and by the use of an object.
[68] In terms of the number of bands, one of the factors suggesting a generic sentencing response is that all forms of the offending proscribed in s 128 carry a maximum sentence of 20 years. Further, an approach which treats these forms of violation as broadly similar in the sentencing context is consistent with the purpose of the rape law reforms. That is because one of the objects of the rape law reform exercise was to recognise that any act of sexual violation involves, as this Court put it in R v Accused CA265/88, “an act of violation to the body of another involving at
the very least an invasion of privacy and loss of personal dignity”.
[57]
[69] The United Kingdom guidelines in applying the starting points in
Millberry to all non-consensual offences involving penetrations of the
anus or vagina or penile penetration of the mouth, state that, “It
is
impossible to say that any one form of non- consensual penetration is inherently
a more serious violation of the victim’s
sexual autonomy than
another”.[58]
[70] In addition, as Ms Aikman submits, there are dangers in focusing on
the mode of violation in isolation from other aggravating
factors. The
combination of factors is critical.
[71] It has to be recognised, however, that one of the difficulties in
terms of an appropriate sentencing response is that sexual
violation covers such
a variety of circumstances and so, inevitably, varying degrees of seriousness.
It also has to be noted that
sentencing patterns have tended to be lower for
digital penetration and for some forms, at least, of oral
sex.[59] The same approach
is adopted in the United Kingdom where the guidelines provide for lower
sentences for penetration by, for
example, fingers or the tongue where no
physical harm is sustained by the victim.
[72] To illustrate the approach taken, in R v M the Court did not
set a tariff but suggested that starting points of between two and five years
represented the range for digital
penetration at that time.
[60] This Court has subsequently
made it plain that these starting points applied to a single violation by way of
digital penetration:
R v K
(CA558/08).[61]
[73] It would be wrong to suggest that violation by digital penetration
and oral violation (not involving penile penetration of
the mouth) is always
less serious. This was recognised by this Court in R v
Singh,[62] a digital violation
case, that involved a very violent attack on a stranger that caused significant
injury. The Court observed that
an argument based on the suggestion that
anything which did not involve penile violation “will necessarily be
treated less
seriously cannot be
tenable”.[63] The Court
continued:[64]
There will be situations where lesser penalties for non-penile penetration
are appropriate, but any rigid categorisation is unhelpful.
As the
circumstances of this case clearly demonstrate, it is the total circumstances
which need to be assessed and it is the combination
of them which will indicate
the appropriate sentencing levels.
[74] In R v Tranter the Court said that the two to five year R
v M range should not be seen as limiting the options available to the
sentencing Judge. [65] The
indication was that a starting point of less than two years would, however,
rarely be appropriate
while a starting point of more than five years “may well” be
appropriate in more serious
cases.[66]
[75] Given the wide range of offending and of culpability we have
concluded that it will prove more helpful to sentencing judges
to separate out
these categories. As will be seen, we accept the Crown submission that at the
higher end of the spectrum, sentences
for digital penetration or oral sex (not
involving penile penetration of the mouth) should come close to those for penile
penetration
or penetration with an object.
[76] Equating penile penetration of the mouth with other forms of
penetration is a change in sentencing practice. In that context,
we note that
in sentencing and at appellate levels there is often a lack of clarity as to
what type of activity is included under
the descriptor “oral sex”.
On our approach, it will need to be clear what activity is involved.
[77] Offending of the sort covered by these bands, as we have indicated,
can vary in seriousness in terms of both the offender’s
culpability and
the effects on the victim. However, each of the bands assumes a level of
unlawful activity and that any form of
sexual violation involves serious
offending. The seriousness of this offending is reflected in both the 20-year
maximum term of
imprisonment and the presumption of imprisonment. Section
128B(2) of the Crimes Act 1961 provides that persons convicted of sexual
violation must be sentenced to imprisonment unless, “having regard to the
matters stated in subsection (3)” the court
considers imprisonment should
not be imposed. The matters in s 128B(3) are “(a) the
particular circumstances”
of the offender and “(b) the particular
circumstances of the offence, including the nature of the conduct constituting
it”.
[78] In a sentencing exercise, inevitably, degrees of seriousness have to
be stated and the sentencing judge has to make that
assessment. Where offending
or an aspect of it (for example, an aggravating factor) properly falls at the
lower end of the spectrum,
the sentencing Judge needs to state that. Such an
assessment does not mean the offending is not being treated as serious in
itself;
as with sentencing in all
areas, the process requires a court to make often invidious comparative
assessments in relation to events which on any view are unacceptable
and often
disturbing.
[79] In considering the culpability of offending in a particular case, we emphasise that what is required is an evaluative exercise of judgment. We see judges as having a reasonable degree of latitude in this exercise. Sentencing judges will have a range of information before them and, after trial, will have more information than can be gleaned from the record. In assessing the gravity of offending judges must, of course, do this in a fact-specific way focusing on the culpability of the offender and the effect on the victim and, as a corollary, they must not reason by stereotype or seek to turn responsibility for the offending back on the victim, in terms of “she
asked for it” or other excuses based on rape
myths.[67]
[80] These guidelines are to be applied in the same way regardless of the
gender of the offender or of the victim. That
reflects the
gender-neutral definition of “sexual connection”.
[68]
[81] Because of the evaluative nature of the sentencing process, we have
tried to maintain a degree of flexibility and as in
Taueki,[69] we
have provided for some overlap in the margins of the bands.
[82] In terms of the very top of the highest band for the rape
guidelines, we have taken the same approach as in Taueki in that this
band goes to the maximum term. In this respect, we are taking a different
approach than that of the Crown and from Ms
Aikman both of whom submitted that
the top of the highest band should fall a little below the 20-year maximum.
They saw taking a
slightly lower end point as emphasising the ability to
depart from the bands in extreme cases and to acknowledge the
nature of
the maximum sentence available whilst still reflecting the availability of that
penalty to the sentencing judge. We agree
that, from a practical perspective,
it is more difficult to achieve consistency if the bands are very
wide.
However, there will be cases where the offending is within the most serious
of cases or close to the most serious, in which
case, in terms of s
8(c) and (d) of the Sentencing Act, the maximum term or a term near to the
maximum should be imposed.
[83] There will also be cases which are so unusual that they will require
a starting point outside of the guideline (ie, below
the bottom of band one).
Where a judge departs from the guidelines, reasons should be given for the
departure.
[84] The proposed bands set out ranges of starting points, not final sentences. In the usual way, that starting point will be adjusted up or down to reflect circumstances personal to the offender. It is at this stage that mitigating factors such as youth, mental disability, and earlier good character will be taken into account. It is important that judges do not diminish this aspect of sentencing. Sentences should reflect personal factors. The point of the guidelines is not to impose a straitjacket on
sentencing judges – quite the reverse. As explained in
Hessell,[70] the reduction
for a
guilty plea should be made as the final step in the sentencing process after
the otherwise appropriate sentence has been determined,
ie, after other
mitigating factors have been taken into account.
[85] One of the factors in determining placement within a band will be
the role of the offender. There will be cases which fall
within the most
serious band even though the offender is only convicted as a party because of
his or her role in inciting, for example,
a particularly brutal or cruel
rape.[71]
[86] Finally, the guidelines do not deal with preventive detention or
with the imposition of minimum periods of imprisonment.
Consideration of the
imposition of these sentences is always a part of the sentencing
exercise.[72]
[87] With these factors in mind, we now describe the proposed sentencing
bands for sexual violation.
The bands for sexual violation where the lead offence is rape, penile
penetration of the mouth or anus or violation involving objects
(the rape
bands)
[88] We have followed the approach which is now familiar in cases like Taueki of setting out bands within which ranges of starting points are provided. As is apparent from our earlier discussion,[73] our role in these matters is not a legislative one but is rather to provide guidance for sentencing judges. In developing these proposed bands, we have, with the assistance of counsel surveyed existing case law on current sentencing patterns. We have also taken into account work done by the SEU following its consultative exercise. The objective, as we have said, is to assist in achieving consistency of approach and properly graduated sentences which reflect
the overall culpability.
[89] The Crown proposed three bands for rape offending, with ranges as
follows: band one, 6 to 9 years; band two, 8 to 14 years;
and band three, 13 to
19 years. The ranges we have adopted are broadly consistent but we have
included a fourth band to reflect
the seriousness of particular types of
offending.
[90] The bands for sexual violation where the lead offence is
rape, penile penetration of the mouth or anus or violation
involving objects
are:
(a) Rape band one: 6-8 years; (b) Rape band two: 7-13 years;
(c) Rape band three: 12-18 years; and
(d) Rape band four: 16-20 years.
[91] For each of the bands we include examples which may assist with the
application of the culpability principles set out above:
at [34] to [64]. The
examples are a convenient way of providing illustrations of factual scenarios.
The use of earlier cases is
not a commentary on the appropriate sentencing
outcome in those cases. It will generally not be helpful to revert back to the
actual
outcome in those
cases which may well involve a different sentencing regime or a different
approach to starting points. Finally, we note that when
we refer to the lower
end of a band, that encompasses a range from the bottom to the middle of the
band. Similarly, a reference
to the higher end of the band incorporates a range
from the middle to the top of the band.
[92] In the interests of brevity, we use “O” and
“V” to describe the offender and the victim respectively
in the
examples.
Rape band one: 6-8 years
[93] This band will be appropriate for offending at the lower end of the
spectrum; that is, offending where the aggravating features
are either not
present or present to a limited extent. Rape band one is not an appropriate
band for offending where the level of
violence is serious, the case involves an
extended abduction, a victim who by reason of factors such as age (children or
elderly
persons) or mental or physical impairment is vulnerable or an offender
acts in concert with others. Where none of the factors referred
to above at
[37] to [52] which increase the seriousness of the offending are present a
starting point at the bottom end of this band
would be appropriate. Where one
or more of these factors is present to a low or moderate degree, a higher
starting point within
the band would be required.
EXAMPLES OF CASES WITH STARTING POINTS AT THE LOWER END OF RAPE BAND
ONE:
• R v Murphy:[74]
O had been drinking and came home at dawn to find a man and a woman whom
he did not know asleep in his bed. O tried to wake them
and asked them to
leave. The male did so. The female, V, said she woke to find a man attempting
to have sexual intercourse with
her. She said she thought it was the man who
left the room (the two having met the previous evening) and sexual intercourse
took
place. When V got up and could see the man in bed she realised it was O
and left the room and made her complaint.
• R v Pehi:[75]
O and V were in a relationship for about six months. After some kissing
in the early hours one morning in V’s bedroom, O, by
then extremely drunk,
assaulted V and then engaged in non-consensual activity culminating in rape.
V was annoyed with O
but said she would have been willing nonetheless to
have sex with O that night.
• R v Hill:[76]
O and V became intoxicated whilst at a party. They shared a taxi ride
home in the early hours of the morning and went to V’s
house where they
drank more alcohol and talked. V asked O to leave after he said he loved her.
She left the room and returned
having changed into pyjama shorts and a top. O
was still there and V told him again that he should leave. O pushed V into a
cane
basket causing minor scraping and bruising to V’s thigh. O removed
V’s clothing and then penetrated her very briefly
before stopping and
apologising for his conduct.
[94] The encounters in these three cases were relatively brief and the
degree of violation correspondingly brief. There was
no additional violence in
Murphy and although both Pehi and Hill involve a level of
violence, it is relatively less serious than the degree of violence seen in many
cases. In Pehi there is an element of prior consensual conduct although
limited to some kissing. Given the aggravating factors referred to above
were
not present or were present to a very low degree, these cases are appropriately
placed in the bottom of rape band one. To
illustrate how the intensity of the
factors is relevant, if the effect on the victim in Hill (bruising and
scraping) had been more significant, the application of the guidelines would
lead to placement higher up the band.
EXAMPLES OF CASES WITH STARTING POINTS AT THE HIGHER END OF RAPE BAND
ONE:
• R v Wirangi:[77]
O, 38, was a friend of 16 year-old V’s family and was asked to look
after the home of a relative in which V was staying. One
night after watching
videos with her, he exposed himself. V asked him to leave. She went to bed and
was awoken by O removing her
clothes. He raped her and then masturbated in
front of her before leaving.
• R v Stusky:[78]
O, male, 31, and V, a 16 year-old girl, were part of a group who had spent
the afternoon drinking alcohol. They had met that day
for the first time. O
and V ended up alone together. O grabbed V, pushed her into the bushes, removed
her lower clothing and despite
her struggles, raped her.
• R v H (CA248/02):[79]
O and V, both adults, had been in a somewhat volatile relationship. V at
one point had obtained a protection order. Early one
morning, O rang V and
said he wanted to come and talk to her. V declined but was later woken by V at
the door. O pushed his way
into the house and would not allow V to leave. He
forced her on to a bed where he had oral sex and raped her. She eventually
escaped.
[95] The victim’s youth and the age disparity are concerning
features of the first two of these cases. In Wirangi, the other
features taking the offending higher up band one than the three cases discussed
at [93] are the breach of trust (the victim
was effectively in his care) and the
range of sexual activity. The features of concern in Stusky are the
particular impact of the offending on the complainant and the element of
abduction. R v H (CA248/02) would attract a higher starting point again
within the band because of the more extensive nature of the sexual activity and
the fact
that the offending involved forced entry into the complainant’s
home.
[96] We have said that cases may fall outside the bottom of the band
because of their unusual fact pattern and an illustration
of a case in that
category is:
• R v Greaves:[80]
V, 17, invited O to her flat and they engaged in sexual intimacies. It
was accepted that sexual intercourse was initially consensual.
However, V
changed her mind during the act and asked O to stop. He did not stop until the
act of sexual intercourse was completed.
[97] Our comments at [78] about the need for sentencing judges to make
an assessment of degrees of seriousness and explain that
assessment will be
particularly relevant to cases at the lower end of rape band one and those
falling below this band.
Rape band two: 7-13 years
[98] By comparison with rape band one, this band is appropriate for a
scale of offending and levels of violence and premeditation
which are, in
relative terms, moderate. This band covers offending involving a vulnerable
victim, or an offender acting in concert
with others or some additional
violence. It is appropriate for cases which involve two or three of the factors
increasing culpability
to a moderate degree.
EXAMPLES OF CASES WITH STARTING POINTS AT THE LOWER END OF RAPE BAND
TWO
• R v Dunick:[81] O, male, and V, female, had been friends for about six weeks.
V invited O to her house. The visit was preceded by text messages with some
sexual content. On O’s arrival, V rejected his
advances. O removed
V’s clothing before he digitally penetrated her, causing her pain, and
then penetrated her with his penis.
He made her kneel on the bed and
again
penetrated her while slapping her buttocks. O made a number of derogatory
sexual references to V. V eventually escaped.
• R v Batt:[82] V, a 38 year old woman, was working as a night porter in a hotel.
O stayed a night as a guest of the hotel. In the early hours of the morning,
he got V into his room on a subterfuge, told her he
had a knife and raped her.
He then left the hotel by a fire escape.
• R v W (CA87/93):[84]
O, male, offended against several boys, aged 11 to 16, over a ten year
period. O was a boxing trainer/coach and invited boys he was
training to stay
overnight, taking the opportunity to offend against them. The majority of the
offending involved masturbation
of the Vs, followed by simulated
intercourse to ejaculation. A single sexual violation charge consisted of
mutual oral contact.
• R v
Anderson:[85] O,
22, whilst intoxicated told his sister he wanted to do something like murder or
rape. Later that evening O saw V, an 18 year-old
female, walking home. O
sexually propositioned her, and as she tried to walk away, he pulled her into an
empty section. He covered
her mouth with his hand and pushed her violently to
the ground when she tried to get up. He masturbated, fondled her and then raped
her. As he did so V started crying and told him she was the mother of a young
child. He withdrew, apologised and asked her to give
him a chance to run away
before calling the police. She agreed and began to walk with O following behind
her. She then ran home and
sought assistance.
• R v Stojanovich:[86]
O was the father of V’s sibling. V, female, 17, moved in with him
not long before the rape but appears to have viewed him as
a father figure,
calling him Dad. V was drinking heavily at the time. O invited V to accompany
him while he was away on a business
trip, buying her alcohol on the way. They
went to a motel room with a queen and a single bed. O purchased more alcohol,
which
V drank. He invited her to lie on the queen bed, which she did in the
apparent expectation he would sleep on the single. She fell
asleep and woke to
find O touching her breasts and fondling her. He then penetrated her with his
fingers and went on to rape her
from behind.
.
• R v Takiari:[87]
V, 19 and visually impaired, was walking home. O followed her. O grabbed
V from behind and directed her into nearby school grounds.
O kissed V and then
told her to lie down. He lay on top of her, forced her legs apart and then
began to remove her lower body clothing.
O kissed V on the genital area over
her underwear and then directed her to remove her underwear. O then performed
oral sex on V.
He fondled her breasts and then raped her. O also rubbed his
penis between her buttocks and forced her to perform oral sex on him
until he
ejaculated. O then directed the complainant to get dressed, told her to go home
and not to tell anyone.
[99] The cases of Dunick and Batt are on the cusp of rape
bands one and two. In Dunick the combination of the increased level
of violence, the range of sexual activity, and associated degradation in
our view
would take this offending into the bottom of rape band two rather than
the top of rape band one. In terms of Batt, we see the threatened
use of a knife and the associated trickery (indicating
premeditation) to get the complainant
alone with him as taking this offending
into the lower end of rape band two.
[100] The aggravating features of Castles include persisting with
the offending and the painful nature of the activity. In addition, the case
involves a group attack.
[101] R v W involves a single incident of sexual violation but
multiple victims, breach of trust, and an extensive period of offending. This
combination places the offending into rape band two.
[102] The combination in Anderson of elements of premeditation and
abduction, some, although comparatively limited, violence and the variety in the
sexual activity
would warrant a starting point at the lower end of rape band
two. Similarly, it is the mix of an element of grooming, breach of
trust, and
various indecencies which would place the offending in Stojanovich within
this band but, again, towards the lower end. The culpability of the offending
in Takiari results from the combination of elements of abduction and of
predatory behaviour, a vulnerable victim and the fact that she was forced
to
face various indecencies.
EXAMPLES OF CASES WITH STARTING POINTS AT THE HIGHER END OF RAPE BAND
TWO
• R v Baird:[88] O, male, and V, female, had been in an off and on relationship.
Events turned sour one evening when O began to question V about a previous
relationship. O then set upon V in a rage leaving V bruised,
with cigarette
burns and a finger needing splinting. O threatened to kill V, tied her to the
bed after other degrading incidents,
inserted a candle into her vagina and lit
it, made her masturbate with the candle and then had anal sex with
her.
• R v Hannagan:[89]
V was O’s de facto partner. O arrived home drunk one night. His
sexual advances to V were rebuffed. He then backhanded
V across the face,
telling her “make sure you tell the cops it was a backhander, not a closed
fist”. O then punched
V in the mouth and inflicted further violence on
her as well as throwing her to the ground and threatening to kill her. O then
forced his penis into V’s mouth, had vaginal intercourse with her, and
endeavoured to achieve anal penetration. This took
place over two
hours.
• R v Morris:[90]
The offending took place over a period of one and a half to two hours in
the early hours of the morning. V and O met after leaving
a party. She agreed
with his suggestion that they hitchhike into the city. They had one ride and
were seeking another when O grabbed
V, threw her into some bushes and then
forced her to have anal intercourse. She was screaming with pain and struggling
when O hit
her around the head and became more violent. He performed a further
act of intercourse while causing V to feel threatened by a piece
of wood he was
holding. He said he intended to keep her there all night. She managed to
escape and was assisted by a passing motorist.
V became pregnant as a result
of the rapes, suffered psychological harm and also received bruising and marks
to her body.
• R v Palmer:[91]
The male O “stalked” the female V over a period of about 18
months. In the early hours of one morning he broke into her
house. V had taken
medication and was in a deep sleep. O removed her pants and had sexual
intercourse with her while she was still
asleep. He then fondled her genitals
and breasts. She awoke when he became over forceful and managed to flee. V
required counselling
after the offending, had sold her house, and had problems
sleeping and suffered from nightmares.
• R v V (CA442/94):[92]
O, 25, smashed a window to gain entry to a retirement home unit. He
entered the bedroom and raped V, 77, threatening to kill her
when she
screamed.
[103] In Baird the relevant features are the level of violence, use
of threats, and the nature of the sexual activity with the additional degrading
aspects warranting higher placement in this band. The combination of violence,
numerous incidents of sexual violation and effect
on the victim place the
offending in Morris at the high end of this band. Hannagan
involved violence and threats. The multiple sexual violations add to the
seriousness of the offending.
[104] In Palmer the level of premeditation when combined
with the fact the offending involved home invasion and, as well, the effect
on the
victim put this offending into the top of rape band two. The particular
vulnerability of the victim and the home invasion aspect
puts R v V into
rape band two.
Rape band three: 12-18 years
[105] This band will encompass offending accompanied by aggravating features at a, relatively speaking, serious level. Rape band three is appropriate for offending which involves two or more of the factors increasing culpability to a high degree, such as a particularly vulnerable victim and serious additional violence, or more than three of those factors to a moderate degree. Particularly cruel, callous or violent single episodes of offending involving rape will fall into this band as is demonstrated
by R v Singh,[93] one of
the examples set out below.
EXAMPLES OF CASES AT THE LOWER END OF RAPE BAND THREE
• R v Amohanga:[94]
O, 17, rang V’s doorbell one evening inquiring about an address. V,
77, answered in her nightgown and gave him the information.
O then went to the
back of the house, took a screwdriver from the garage and entered the house
through a window. He beat
V with the screwdriver, causing extensive
bruising and a cracked rib, demanding money and threatening to kill her, then
raped
her. V was left with partial deafness in one ear.
• R v Tipene:[95]
O entered the female and male Vs’ tent with a knife. He woke the
Vs, using the knife to threaten them and demand money. He
forced his penis into
the female victim’s mouth. His threats were such she thought she was
going to die. O then began to
digitally penetrate her in a painful way
before raping her, requiring her to perform oral sex on him again threatening
her with the knife. He then had vaginal intercourse
with her, forced her to
perform oral sex on him while licking her vagina, and then masturbated into her
mouth. He also required
the female V to perform oral sex on her
partner.
• R v Singh:[96]
O violently assaulted a man and then forced him and a young woman to watch
as he violently and repeatedly raped the man’s mother
over a period of
more than twelve hours. This included at one stage loading a gun and putting it
in her vagina.
• R v Campbell:[97]
That case involved two sets of offending but, for current purposes, we
refer to one of these. O, a 34 year-old male, invited V, a
14 year-old boy to
his home, on a pretext. What followed included O performing fellatio
and sodomising V as well as
body piercing him. The next day O pushed V down on
a bed and tattooed him around the genital area using a home tattoo gun. O then
restrained V in a wardrobe using shackles and chains before striking V with a
length of cylindrical rubber. He poured hot wax over
V. After leaving him
restrained in the wardrobe for an hour he sodomised him again. The offending
continued on to the next night
and included O holding a hot branding instrument
against V resulting in a second degree burn. The following day O fellated and
sodomised V again. Two days later O again pierced V’s body and again
beat him and sodomised him. The following day V managed
to use the telephone and
summoned help.
[106] Although similar in some respects to R v V the level of
violence and the injuries sustained by the victim put Amohanga into this
band. There are two victims in Tipene. The other relevant features of
that case are the violence and threats, the painful penetration and the
degradation associated with
the female victim having to perform oral sex on her
partner in the presence of the offender. As noted, the particularly cruel and
callous nature of the offending in Singh put it into this band. In terms
of Campbell, the length of time involved in the incident is significant.
That feature, along with the violent and degrading nature of the offending
plainly puts the offending in that case into rape band three.
EXAMPLES OF CASES AT THE HIGHER END OF RAPE BAND THREE
• R v Roberts:[98]
V, aged three, was O’s step-daughter. V was staying with her mother
and O. O and V were waiting for her mother when she began
crying. O swore at
her, pushed her over causing cuts and bruising. He struck her eight or ten
times, took down her pants and put
his fingers into her vagina and “worked
them round”. Then he pushed the neck of a soft drink
bottle
into her anus. After that, he inserted his penis into her vagina and moved
her around on top of him. V suffered severe damage to
the anus and genitals and
was expected to have emotional problems requiring long-term
rehabilitation.
• R v Kahui:[99]
O forced his way into the female V’s house on a pretext. He did not
know V but had either been stalking her or had been inside
her house before. O
subdued V after a struggle. He threatened her with weapons and punched her
about the head before beginning
several hours of degrading sexual offending. O
raped V on a number of occasions. He also performed oral sex on her and made
her
do the same to him. V was forced to use a vibrator on herself and O also
digitally penetrated her. He made her dress up and watch
a pornographic video.
The offending was punctuated by various threats to kill and O took V with him
when he left the house and forced
her to stay with him until she managed to
escape.
[107] In Roberts, the very young age of the victim together with the
nature of the indignities forced upon her by someone who had responsibility for
her care and the impact on her means this offending would attract a starting
point towards the higher end of rape band three. The
aggravating features of
Kahui are the use of violence and threats, the fact home invasion and
abduction were involved, the degrading nature and range of the sexual
activity
and an element, at least, of premeditation.
Rape band four: 16-20 years
[108] The same sorts of factors that place offending towards the higher end
of rape band three will apply here but it is likely
that the offending in rape
band four will involve multiple offending over considerable periods of time
rather than single instances
of rape.
[109] Perhaps the paradigm case of offending within this band is that of
repeated rapes of one or more family members over a period
of years as is
illustrated by the present case. Offending of this nature, especially that
involving children and teenagers will
attract starting points at the higher end
of this band as indicated by the authorities discussed in R v S
(CA64/06)[100] and
R v Proctor.[101]
Gang or pack rape is another situation which is likely to fall within this
band.
EXAMPLES OF CASES AT THE LOWER END OF RAPE BAND FOUR
• R v N
(CA88/05):[102] Over two and
a half years, O forced V, his step-daughter aged seven to nine years, to endure
rape, sodomy, digital penetration and
oral sexual connection. The offending
came to light when V attempted to take her life.
• R v Gordon:[103]
O, male, offended against the two female Vs, V1 (aged between eight and
ten) and V2 (aged between eight and nine) whilst babysitting
them. O raped V1
on two occasions, performed oral sex on her, forced her to perform oral sex on
him and digitally penetrated her.
O also rubbed his penis against her genitalia
and exposed himself to her. O anally raped V2 twice, performed oral sex on her
and
forced her to perform oral sex on him, forced her to masturbate him and
touched her breasts.
• R v Martin:[104] O’s offending involved seven male Vs, aged eight to 22 over a
13 year period. The charges involved manual and oral stimulation and anal
intercourse. O came into contact with his Vs through his
involvement with
various groups including Maori cultural groups and his positions as Scout leader
and Minister of a local Church.
He organised activities in which the boys
stayed at his home and also took them camping.
• R v Koroheke:[105]
The 5 male Os abducted the 15 year old female V from her house at 2 am,
after luring V’s partner from the house on a pretext.
The Os took V to
another house, were they jointly violated her over a two and a half hour period.
The attack included forcing V
to perform oral sex on the Os in turn while
others stood around the bed watching and masturbating themselves,
penetrating
her with a hammer handle for a prolonged period, attempts at vaginal
intercourse, rolling deodorant over her genitals, spitting on
her and verbally
abusing her and standing around her chanting “Sieg Heil” and barking
like dogs.
[110] The case of R v N (CA88/02) could possibly be treated as
falling within rape band three because there is one complainant but given the
offending occurred over
a period of years and the effect on the victim was
severe it is better dealt with in this band. The same could be said for
Gordon but the fact there are multiple victims puts it into rape band
four. Both cases are characterised by a breach of trust of vulnerable
victims
and a wide range of offending. In Martin it is the combination of the
period of the offending and number of victims which makes the offending serious.
As well, in Martin there is the breach of trust.
[111] In Koroheke, the planned abduction, high degree of
degradation, youth of the complainant, and the active involvement of multiple
offenders makes
the offending both brutal and particularly humiliating and
degrading.
EXAMPLES OF CASES AT THE HIGHER END OF RAPE BAND FOUR
• R v E
(CA433/04):[106] When O met
his wife, she had a daughter V. The couple subsequently had four children.
The wife and the other children were subjected
to physical abuse by O over a
number of years, and in the case of the children, for most of their lives. O
began sexually offending
against V1 when she was 11 years old and this
culminated in regular rapes when she was aged between 13 and 16. O would
physically
and verbally abuse her if she protested. V1 became pregnant at age
15 and was forced to have an abortion.
• R v P
(CA176/04):[107] O offended
against his two daughters. The offending against the eldest daughter, V1,
occurred over a period of ten years commencing
when she was eight. It began
with O making her touch his penis, making her perform oral sex on him and
digitally penetrating her.
The offending progressed to frequent rapes in the
last five years. The offending against the younger daughter, V2, involved an
assault which occurred when she was eight years old.
• R v T
(CA445/03):[108] The
offending related to O’s young daughters. V1 was aged six or seven when
the offending began. It began with indecent assaults
and progressed to sexual
violation and rape when she was 11 or 12 and continued until she was 19. O was
sentenced on the basis he
had groomed V1 from the outset. Some years after the
offending against V1 ended, O obtained custody of V2 with the intent of
repeating
the process in relation to V2 which is what occurred. Both victims
suffered lasting effects.
[112] These three cases (R v E, R v P, and R v T) share a
combination of the sorts of factors which are unfortunately characteristic of
this sort of offending. All of these cases
involve sustained offending over a
period and breach of trust of vulnerable victims with unsurprisingly severe
impact on the victims.
The bands for other violation where unlawful sexual connection is the lead offence
(the USC bands)
[113] For other violation where unlawful sexual connection is the lead
offence the bands are:
(a): USC band one: 2-5 years;
(b) USC band two: 4-10 years; and
(c) USC band three: 9-18 years.
USC band one: 2-5 years
[114] This USC band will cover offending at the lower end of the spectrum.
Where none of the factors referred to above which increase
the seriousness of
the offending is present a starting point at the bottom end of this band would
be appropriate. Where one or more
of these factors is present to a low or
moderate degree, a starting point closer to the top of the band would be
required.
EXAMPLES OF CASES AT THE LOWER END OF USC BAND ONE
• R v McNicholl:[109]
O, male, and V, female, were friends and neighbours. V, O and V’s
mother had been out together. V’s mother dropped the
other two at
V’s flat. V was intoxicated and eventually went to sleep. When she woke
up, O had removed her trousers and her
underpants and had his face near her
pubic area and his finger in her vagina. She got up and left the room. She
told a flatmate
and the flatmate saw that O left the flat.
• R v Neroj:[110]
O, male, 36, went to V’s house for dinner. V, female, 15, became
uncomfortable when O started play fighting with her friend.
O followed V
out of the room, hugged and kissed her and touched her breasts. He held her on
the ground but she got away so he
pursued her around the house, put $20 in her
bra and tried to put his hands down her pants. He then forced her hand into her
pants,
put his hand inside her pants and briefly put his fingers into her
vagina.
• R v Fisher:[111] O, male, was at the male V’s flat for a party. All were heavily intoxicated. V retired to bed with his partner, leaving O sleeping in lounge.
V woke to find O had removed V’s shorts and underpants and was sucking
V’s penis. O left when V woke.
[115] In terms of the guidelines, the relative brevity, lack of violence
and limited nature of the offending in McNicholl put it within USC band
one. The same features characterise Neroj and Fisher.
EXAMPLES OF CASES AT THE HIGHER END OF USC BAND ONE
• R v MacKenzie:[112]
O licked the anus of an eight year old girl in his care. He was
interrupted by the phone, threatened V with a jug cord for putting
her clothes
back on, and then penetrated her anus with his tongue.
• R v M
(CA459/99):[113] V, a 15
year-old girl, was a friend of the male O’s daughter and was staying with
O on a weekend sleepover. O, V and O’s
daughter went out drinking. V
fell asleep on couch and woke to find O touching her genitals and kissing her.
V pretended to be
asleep but crossed her legs in an attempt to stop him. O
opened her legs and inserted his finger. He desisted when V made a show
of
waking up but asked if he could have sex with her. She refused.
• R v Kincaid:[115]
V, 15, worked as a cleaner at O’s factory during the school
holidays. O, 51, touched V’s breasts one afternoon while
she was standing
on a chair painting a wall. V complained to her parents at the time, but
stayed in the job because she needed
the money. Three weeks later, when V and O
were the last people left at work, O grabbed her, and started kissing and
touching her
breasts and genitalia. He said if she told anyone, she would lose
her job. He took her to another part of the building, removed
her pants and his
own before digitally penetrating her for about two minutes and then
unsuccessfully attempting penile penetration.
[116] In the case of MacKenzie there are two incidents but both are
relatively brief. The additional feature of breach of trust warrants its
placement a little higher
up the band. R v M is similar and the offender
persists despite the victim’s attempts to stop him. In Jackson,
there is a breach of the trust of a vulnerable victim and the additional
degradation of the offender ejaculating on the victim.
Finally, Kincaid
could be treated as either at the top of this band or the lower end of USC
band two because of the age disparity between the victim
and the offender, the
use of a threat, and the fact the incidents occur on more than one
occasion.
USC band two: 4-10 years
[117] This USC band is appropriate for cases of relatively moderate
seriousness. It will encompass cases which involve two or three
of the factors
increasing culpability to a moderate degree.
EXAMPLES OF CASES AT THE LOWER END OF USC BAND TWO
• R v C
(CA43/98):[116] V, 11,
was in effect O’s step-daughter. She was entrusted to his care for a
few days. O, 20, induced V to masturbate
him, masturbated her and digitally
penetrated her.
• R v Bell:[117]
V, a nine year-old girl, assisted the male O with his
housekeeping in exchange for money. A number of indecent assaults
took place
over six months, culminating in two instances of sexual violation on the same
occasion. The sexual violations involved
digital penetration and licking
V’s genitalia. The indecencies included rubbing V’s vagina through
her clothing and
licking and sucking her breasts. O also took indecent
photographs of V and exposed himself to her and asked her to touch his
penis.
• R v Alletson:[118]
The offending related to two female Vs who were O’s neighbours.
The offending occurred between 2003 and 2005 over which period
O was aged
between 15 and 17. V1 and V2 used to play games in a bush area belonging to
O’s parents. O would engineer opportunities
to be with each V and the
offending happened in either the bush or a disused sauna. V1 was between eight
and ten years old at the
time. O put his hand down her pants touching her
genitalia and lay on her simulating intercourse as well as sexually violating
her
by digital penetration. V2, then aged six, was indecently assaulted by
touching her breast and buttocks and that continued until
she was eight. O also
fondled her genitalia, rubbed his finger between her buttocks and induced her to
fondle his penis.
[118] R v C and Bell are both at the cusp of USC bands one
and two. In R v C, it is the breach of trust of a child and the nature
of the sexual activity which puts it into USC band two. For Bell, the
period of offending and the added indignity of the indecent photographs would
put this offending into this band. Finally, in
Alletson the two victims,
the period of the offending and the element of premeditation associated with the
variety of types of sexual activity
take this offending out of USC band
one.
EXAMPLES OF CASES AT THE HIGHER END OF USC BAND TWO
• R v Harris:[119]
O, 47, male, offended against a 12 year old boy for around 18 months when
they both resided at a caravan park. The offending involved
playing with and
sucking V’s penis and attempting to anally penetrate V, although he did
not persist with this when
V pulled away. V was left severely
traumatised.
• R v Stewart:[120]
The two female Os invited V, a female acquaintance, to their house for the
evening. Cannabis was smoked during the evening and V
lay down on the floor
where she was given a blanket and pillow by O2. O1 lay down beside V and began
hugging her and touching her
breasts. V objected but O1 pushed her and V struck
her head. V then went to the bathroom. Returning to a dark room, she lay down
again but later woke to find O1 touching her breasts. O1 bit and scratched V
before threatening to kill her and kicking her in the
knee and ribs. O1 then
pulled down V’s pants and penetrated her with her fingers and then her
fist. O2 was kneeling beside
V, urging O1 on.
• R v Roach:[121]
V was a relative of O’s wife. O went to V’s house to pick up
some electronic equipment. After having a cup of coffee
with V, O grabbed her
and forced her down on the floor. She started screaming and he produced a
pocket knife, threatening to kill
her if she did not stop screaming. He took
down her jeans and pants and digitally penetrated her which she found
painful.
He bit her wrist when she struggled. After further indecencies were
inflicted, she persuaded him that if they went to her work,
other sexual
activity could follow. She was able to escape.
• R v Patuwai:[122]
O followed V and her friends when they left a pub. He took the same taxi
van as she did and followed her when she got out. He dragged
her across a road
and pinned her against the wall, where she was violently digitally penetrated.
He stopped when she begged for
mercy, telling him she was pregnant. He took her
blood stained shirt off her, giving her his shirt.
[119] In Harris, there is a large age disparity between the offender
and the young victim and the duration of the offending is considerable.
Stewart involves threats, some violence especially in the form of the
assault, and offenders acting in concert. The second offender, who was
convicted
as a party, would receive a lesser sentence given her reduced role in the
offending. In both Roach and Patuwai, the increased severity of
the violence involved is a concerning feature. In Roach, there are also
threats and degrading aspects. The second concerning aspect in Patuwai
is the element of premeditation.
USC band three: 9-18 years
[120] This band is appropriate for the most serious offending of this type.
USC band three will encompass cases which involve two
or more of the factors
increasing culpability to a high degree, for example, a particularly young
victim or an extensive period of
offending. Similarly, the band will be
appropriate where more than three of those factors are present to a moderate
degree.
EXAMPLES OF CASES AT THE LOWER END OF USC BAND THREE
• R v K
(CA558/08):[123] O touched
and penetrated his step-daughter’s genitalia with his fingers and licked
her genitalia. He did this on about 50 occasions
over a two year period when V
was aged nine to 10.
• R v P
(CA86/95):[124] O, 26,
offended against three Vs aged 3, 4, and 5. V1 was boarding in O’s home.
On four occasions he removed her clothing
and kissed her buttocks, anus and
vagina. O was boarding with V2’s family. He tried to remove her clothing
but desisted and
exposed himself to her when she objected. The offending against
V3 occurred at a family barbecue. When O went off to a secluded
area, V3
followed him, apparently without O’s encouragement. O then pulled down
her pants, touched her bottom and licked
her vagina. He then rubbed his
penis against her buttocks and genitalia.
[121] The placement of R v K in this band reflects the numerous
occasions of offending and the breach of trust. In R v P the concerning
features are the number of victims and their very young ages.
EXAMPLES OF CASES AT THE HIGHER END OF USC BAND THREE
• R v H
(CA101/06):[125] The
offending involved 13 charges and eight female Vs over a 15 year period
(1990–2005). The majority of the offending
occurred when O babysat
for families he met through church activities. The most serious charges involved
O’s own daughter,
and commenced when she was six months old. O fondled
her genitalia on at least 20 occasions, kissed her genitalia on other occasions
and attempted digital penetration. He also placed his penis on V’s
exposed genitalia. The offending against the other victims,
who ranged in age
from four to 15 years, involved genital fondling, touching of breasts and
digital penetration.
• R v Grinder:[126] O, male, offended against 13 children over a 25 year period.
The Vs, aged four to 16 years, were both male and female. There were 24
charges, most representative. The historical nature of
the offending meant O
was charged with only one count of sexual violation (digital) however much of
the conduct charged as indecent
assault involved “oral contact”. It
is not clear that this was non-penetrative. The other offending involved
masturbating
the male Vs, touching the breasts, genitalia and buttocks of the
female Vs and self-masturbation in the presence of the Vs. The
case does not
give details of who the Vs were and how O came into contact with
them.
• R v Te
Tauri:[127] The offending
involved three female Vs, aged three and a half to nine years, all children who
were in daycare in the male O’s
home. The most serious offending was
against the three and a half year old. It continued for two and a half years.
O touched her
vagina, kissed and licked her vagina, made her hold his penis,
and, wearing a condom, placed his penis between her thighs and simulated
intercourse until he ejaculated. O admitted the kissing of the vagina occurred
on at least 20 occasions, the licking on at least
10 and the simulated
intercourse occurred 20 times.
[122] In R v H, the aggravating features of the offending are the
victim impact; breach of trust particularly in relation to the offender’s
own child; the vulnerability of the victims especially of the offender’s
very young daughter; premeditation; and the sheer
scale of the
offending.
[123] The offender in Grinder was sentenced to preventive detention
which makes the record of the case less helpful for present purposes. However,
what is apparent
is illustrative of the combination of factors and the levels of
seriousness that will take a case into this band.
[124] Finally, with respect to Te Tauri, the aggravating features
were the impact on the victims, the breach of trust, the range and period of
charges reflected in their
representative nature and the scale of the
offending.
Starting date for application of the guidelines
[125] The content of this guideline does not differ significantly from what
many sentencing judges have been doing in reliance on
more recent appellate
authority. The new guideline should be applied to all sentencing
taking place after
31 March 2010. That was the approach this Court took in
Taueki[128]
and in
Hessell.[129]
To assist trial judges and counsel, a copy of this judgment is being
emailed to all trial judges, Crown Solicitors, the New Zealand
Law Society, and
the Criminal Bar Association today.
[126] In those cases where sentencing indications have been given and
relied on by defendants, sentencing judges should adhere to
those indications
rather than follow the guideline, unless the guideline yields a more
favourable result than the indication.
[127] With respect to appeals filed relating to sentences imposed up to
today’s date, we shall continue to apply the law as
set out in previous
appellate authorities.
The case at hand
Overview
[128] AM faced charges alleging sexual offending against three girls (A, B
and C). He pleaded guilty on arraignment to four representative
counts:
(a) Between 10 December 1999 and 30 September 2006 inducing A, a girl
under 12 years, to do an indecent act upon him namely
masturbation;
(b) Between 10 December 1999 and 30 September 2006 sexually
violating A (by connection between his penis and her mouth);
(c) Between 10 December 1999 and 30 September 2006 attempting to
sexually violate A by rape; and
(d) Between 26 November 2004 and 25 November 2005 sexually
violating B by sexual connection between his penis and her
mouth.
He denied two further representative charges (covering the period
between
September 2004 and September 2006) in relation to a third girl, C, which
alleged:
(e) Sexual violation of C by unlawful sexual connection (between his penis
and her anus); and
(f) Sexual violation of C by rape. On these counts he was tried and found guilty.
[129] He was subsequently sentenced (on 19 December 2008) by Judge McAuslan
to a total of 15 years imprisonment. She did not impose
a minimum period of
imprisonment (MPI).
[130] AM has appealed against his sentence and the Solicitor-General seeks
leave to appeal. Primarily in issue on the Solicitor-General’s
application is whether the Judge should have imposed an MPI.
The facts in more detail
[131] AM was born in 1950. So he was in his late forties when the
offending started.
[132] He is the grandfather of the three victims. A and B lived in the
same house as AM and C was a frequent visitor and often
stayed over night. It
was quite common for AM’s grand-daughters to sleep in his room and often
in his bed. Indeed sometimes
more than one grand-daughter would be sleeping
with him either in the same bed or at least in the same room.
[133] A started sleeping in the same room as AM in late 1999 when she was five years old. The offending against her lasted for some seven years. On most occasions this involved AM attempting to have vaginal sex with her. She was frequently forced to engage in oral sex with AM and on occasions to masturbate him (resulting in him ejaculating over her hands and body). Characteristically the offending occurred at night, especially weekends, when AM had been drinking. He
would require her to go into the bedroom with him when he arrived home. On
occasions both A and C were required to sleep in AM’s
bed with him
offending against the victims in each other’s presence.
[134] B is A’s sister and two years younger. The offending against
her started in November 2004 (when she was eight) and
carried on for a year.
She was required to perform oral sex on AM on a number of occasions. This
occurred in the presence of A
and C on more than one occasion.
[135] C was sexually abused by AM for two years, between 2004 and 2006.
The offending starting when she was nine and occurred when
she visited AM and
was required to sleep in his bed or on the floor. Often enough A was there
too. The offending against her
involved sexual violation by rape on around ten
occasions and anal intercourse between five and ten times. During the course of
the offending she struggled and attempted to push him off. She was threatened
with a hiding if she told anyone.
The criminal process
[136] The investigative and trial process unfortunately took some
time.
[137] AM was first interviewed on 24 October 2006 in relation to
allegations made by A. There was a further interview on 22 November
2006 in
relation to all three complainants. At the first interview AM denied all
allegations of sexual misconduct but he made some
limited admissions at the
second interview. He was arrested and charged on 23 November 2006.
[138] His trial was originally to take place on 28 January 2008. Just
before it was due to start, there was some discussion with
his then counsel and
the prosecutor as to the possibility of guilty pleas but nothing eventuated. In
the end, the trial was put
off until early August. Formal proposals as to
guilty pleas did not surface until the week preceding the trial.
[139] The trial in relation to C involved a limited contest which came down to whether there was penetration, an issue which was resolved by the jury against AM.
Impact on the victims
[140] The legal proceeding caused deep divisions within AM’s extended
family. Presumably for this reason, victim impact statements
in relation to A
and B were not provided. C, on the other hand, did provide a victim impact
statement in which she recorded her
distress at being “singled out”
from her cousins as being the victim who was not believed. She has also been
affected
adversely by loss of relationships associated with the fracturing of
her extended family. As well, C has experienced nightmares,
run away from
home, and attempted self-harm. She has changed schools three times and
has been absent frequently because
she has been too scared to leave the house.
She has displayed aggressive behaviour and on occasions has been involved in
fighting
at school. Her mother has expressed concern that C has acted and
dressed in an inappropriately mature way for a 12-year old girl.
AM
[141] AM was brought up in circumstances of poverty and has had
comparatively little formal education. He has, however, been in
employment for
most of his life and was described by those spoken to for the purposes of the
pre-sentence report as being hard working.
His employment history has tended to
involve either manual work or the use of heavy equipment. We note that he
accumulated 13 convictions
between 1968 and 2007. The pattern of these
convictions is indicative of some anti- social attitudes but none were serious
enough
to result in imprisonment or are worthy of particular comment in the
present context.
[142] AM and his wife had nine children. At the time of the offending he
and his wife were no longer living together for reasons
which she
attributes largely to alcohol abuse and associated verbal and low-key physical
abuse. Despite AM’s general denials
of having a problem with alcohol, it
seems likely enough that much of his offending, including the current offending,
has been associated
with drinking.
[143] AM did not seriously engage with the probation officer who prepared a pre- sentence report. He was, however, rather more forthcoming with a psychologist who concluded that he was at low to moderate risk of re-offending. This view was
informed by actuarial assessment using the Automated Sexual Recidivism Scale
and
Stable 2007.
[144] Some submissions were made to us (as they were to the sentencing
Judge) about AM’s health status. Nothing in the nature
of medical
evidence has been supplied. On the other hand, the pre-sentence report writer
observed that “he did not appear
to be of good health” and the
psychologist noted:
At the time of interview [AM] said he was receiving medical attention for a
painful condition in his left hip and pelvis, including
Voltarin medication. He
had received dental treatment by request and was on a vegetarian diet, which he
said was due to difficulties
in chewing hard food. His medical file confirmed
these details.
[145] As well, a fellow inmate of AM felt moved to write a letter to the
sentencing Judge in which he referred to AM as “elderly”
and
described him generally as being in ill health. All of this is at a fairly
general and impressionistic level and, in the case
of what the fellow inmate
said, unverified. We nonetheless accept that AM’s general health has been
affected by his hard life,
employment history and perhaps his
drinking.
The sentencing remarks
[146] The Judge’s general approach to the sentencing exercise
is adequately captured from the following passage from
her sentencing
remarks:
[18] Taking everything into account, and accepting that the starting
point for you in light of the authorities that bind this
Court, but noting all
of these cases do turn very much on their own particular effects, I am satisfied
that the starting point for
you is one of 17 years imprisonment on the
lead offence which is one of rape. You are then entitled to credit, and the
only
significant credit that I consider you are entitled to is for the guilty
pleas and acknowledgement of your behaviour, even if you
have not acknowledged
that it was unlawful. Based on that I am satisfied that the end sentence on the
lead offence of rape is 15
years.
[19] I accept Mr Lawry’s submission that in your particular case such a lengthy term of imprisonment could not be considered insufficient to denounce and deter your offending and given the other factors that he raised in his submission, I will accept that I should not impose a minimum period of imprisonment.
[20] Accordingly, on the representative rape charge where you
were found guilty at trial, you are convicted and sentenced
to 15 years
imprisonment.
[21] On the representative charge of unlawful sexual connection where
you were found guilty at trial, you are convicted and sentenced
to 10 years
imprisonment.
[22] On the two counts of sexual violation by unlawful
sexual connection, where you pleaded guilty, you are
convicted and sentenced to
eight years imprisonment, on the count of attempted rape to 7 years imprisonment
and on the count of inducing
a girl under 12 years to do an indecent act you are
convicted and sentenced to 5 years imprisonment.
[147] The reasons given by the Judge for not imposing an MPI (see [19]) are
succinct and, in their reference to unspecified “other
factors”,
perhaps a little cryptic. Having regard to the Judge’s sentencing remarks
as a whole, it appears that these
factors were AM’s moderate to low risk
of re-offending and, probably, what the Judge described (in [16]) as his
“significant
health issues, [his] background and the family
support”. The reference to “significant health issues” is
based
on what was said in the pre-sentence report and, as such, was something of
an overstatement. We have, however, already recorded
that some of the other
material before the Judge addressed AM’s health and she, of course, had
seen him in person during his
trial and the sentencing process.
The issues on appeal
[148] In the context of the case at hand, the head sentence imposed on AM
is unimpeachable as Mr Lithgow QC realistically recognised.
[149] More problematic is the fact that the Judge did not impose an MPI
under s 86 of the Sentencing Act. This is the basis of
the application for
leave to appeal by the Solicitor-General who maintains that an MPI of half the
nominal sentence should have been
imposed.
[150] In R v
Brown[130] this
Court considered in some detail the legislative history and purpose of s 86 as
first enacted. Subsequently the section was
amended extensively and now
relevantly provides:
86 Imposition of minimum period of imprisonment in relation to
determinate sentence of imprisonment
(1) If a court sentences an offender to a determinate sentence of
imprisonment of more than 2 years for a particular offence,
it may, at the same
time as it sentences the offender, order that the offender serve a minimum
period of imprisonment in relation
to that particular sentence.
(2) The court may impose a minimum period of imprisonment that is
longer than the period otherwise applicable under section
84(1) of the Parole
Act 2002 if it is satisfied that that period is insufficient for all or any of
the following purposes:—
(a) holding the offender accountable for the harm done to the victim and the community by the offending:
(b) denouncing the conduct in which the offender was involved: (c) deterring the offender or other persons from committing the
same or a similar offence:
(d) protecting the community from the offender.
[151] This section in its present iteration was considered by this Court in
Taueki in the following passage:
[53] ... The Sentencing Act contemplates a two-stage process, involving
the setting of the nominal (maximum) sentence as the
first stage, and
undertaking the exercise required by s 86 (where it is applicable) as the second
stage (Brown at para [35]).
[54] That second stage itself requires a sentencing Judge to address two
questions. The first is whether a minimum period of
imprisonment should be
imposed. If that question is answered affirmatively, it is then necessary to
address the second question -
how long should the minimum period be?
[55] The primary focus of the first question is the statutory test in s 86(2), as set out at para [52] above. As this Court recently noted in R v Walsh (CA
281/04, 19 May 2005) at para [25], the four factors referred to in s 86(2) are matters which correspond with four of the purposes of sentencing set out in s
7(1) (s 7(1)(a), (e), (f) and (g)). The question before the Court is whether
serving one-third of the nominal sentence is insufficient for all or any of
those four purposes. The Court must focus on those purposes
when determining
whether to impose a minimum period of imprisonment. The principles in s 8 and
the aggravating and mitigating factors
in s 9 are applicable only to the extent
that they are relevant to those four purposes. For example, as the Court noted
in Walsh at paras [26] - [28], a guilty plea may be relevant to the
deterrence purpose (if the plea demonstrates insight into the offending)
but may
have little relevance to the community protection purpose.
[56] Once it becomes necessary to address the second question, the length of the minimum period, the Court is required to take into account (to the extent they are relevant to the particular case) all of the purposes of sentencing in s 7 and the mandatory requirements of ss 8 and 9, just as it
must take them into account in setting the finite term: Brown at para
[34]. The setting of the minimum period of imprisonment requires similar
analysis to that required for setting the nominal
sentence. The factors in ss 8
and 9 are relevant to both exercises. The fact that they are taken into account
in setting the minimum
period, as well as the maximum period, does not lead to
double counting, but rather reflects the dual exercise which the
Court
must undertake (Brown at para [36]).
[57] In cases of serious violence, where denunciation and deterrence are
both important sentencing values, and where protection
of the community from the
offender may well be a relevant factor, it can be expected that minimum periods
of imprisonment will not
be rare or even uncommon. It needs to be remembered
that the standard parole period for offending of this kind at the time of the
decision in Hereora was two-thirds of the finite term. That was reduced
to one-third by s 84(1) of the Parole Act. The imposition of a minimum period
of imprisonment, even to the maximum extent permitted under s 86, would
reinstate the two-thirds period. That is a quite different
context from
Rongonui [CA321/00, 9 May 2001], where the Court was being asked to
increase the then standard two-thirds period to a greater period, and where
the
relevant statutory provision made it clear that it was anticipated this would
happen only in the very gravest of cases. As this
Court noted in Brown at
para [21], the views expressed in Rongonui are no longer apt in the
present legislative context.
[152] As is apparent from Taueki, the current version of s 86 is far
less difficult to apply than its awkwardly expressed precursor which was
considered in Brown. But some difficulties remain:
(a) There is some circularity embedded in the wording. If a
judge thought that a term of imprisonment corresponding
to the default one third
parole eligibility period would be sufficient for the purposes specified in s
86(2), presumably that is
the sentence which would be imposed. To put this
another way, it is difficult to contemplate a case where a Judge would consider
that imprisonment of one third of the length actually imposed would meet those
purposes. So, if a strictly literal approach were
taken, the s 86(2)
precondition will be satisfied in every case where a sentence of more than two
years imprisonment is imposed.
(b) Because that cannot be the correct interpretation of s 86(2), a
different meaning must be attributed to the subsection.
(c) This alternative meaning must be along the lines that a Judge can impose an MPI only if satisfied that the nominal sentence to be
imposed would not meet the s 86(2) purposes if subject to the default
eligibility rules.
(d) Usually the culpability of the offender is reflected in the nominal
sentence imposed. The section does not make it particularly
clear why
offenders whose nominal sentence are the same (and whose culpability is thus
similar) should be subject to different parole
eligibility periods.
[153] The factors against imposing an MPI in the present case can be
summarised as follows:
(a) The imposition of an MPI on AM will not produce a discernible
marginal deterrent effect (either on the appellant or others
minded to offend in
the same way) which exceeds the effect of the imposition of a 15 year sentence
subject to the default parole
eligibility rules (the s 86(2)(c) considerations).
The only deterrence consideration which is engaged is a more general one, that
the deterrent impact of very long sentences (and associated confidence in the
legal system) is unacceptably eroded where an offender
can, potentially, be
released after serving only one-third of such a sentence.
(b) In light particularly of AM’s age and only low to moderate
risk of re- offending, protection of the public from him
might be thought to be
safely left to the Parole Board. Accordingly, s 86(2)(d) is not
obviously engaged.
(c) The Judge’s conclusion may also have reflected her assessment
of AM’s likely circumstances (his health as well
as his age) at the expiry
of one third of his sentence. Those circumstances, arguably, might be such as
to affect the justice of
continued imprisonment without being so serious as to
warrant compassionate release.
[154] On the other hand, the considerations in s 86(2)(a) and (b), which involve the overlapping concepts of accountability, denunciation and proportionality, are
relevant given the numbers of victims and individual offences, the duration
of the offending and the extent of breach of trust involved.
[155] The other factor pointing to the imposition of an MPI is the need for sentencing judges to have regard to s 8(e) of the Sentencing Act (the general desirability for consistency) both in deciding whether or not to impose an MPI and assessing the appropriate length. This was a matter addressed by this Court in R v Gordon.[131] The need for consistency in this area was also noted in
R v Laungaue[132]
and R v
Wellm.[133]
[156] A comparison with the appellate decisions from 2003 onwards of cases
involving multiple counts of sexual offending against
children reviewed in
Gordon supports the Crown submission that an MPI ought to have been
imposed in this case. This and the other authorities to which we were
taken by
the Crown suggest that the imposition of an MPI of at least half of the nominal
sentence is very routine in cases of this
type. Further, the totality
considerations which justify capping a nominal sentence are not necessarily so
cogent in terms of the
proportion of the sentence which must be served. So, on
a consistency basis, there is every reason why an MPI ought to have been
imposed.
[157] On balance, we have concluded the s 86(2)(a) and (b) factors and the
need for a consistent approach are such that an MPI should
have been
imposed.
[158] As to the length of the minimum period, the range of the cases
reviewed in
Gordon (excluding one case where an MPI of two-thirds was imposed) is
between
46 and 58 per cent of the determinate sentence. These authorities
suggest the appellants’ personal circumstances
were a factor in
determining the MPIs should be below the maximum.
[159] Given AM’s age, health and the fact he is yet to be given the
opportunity of rehabilitative treatment, and applying
the usual
principles applicable on a Solicitor-General’s appeal, an MPI of
seven and a half years (50 per cent)
should be imposed.
Disposition
[160] For these reasons, AM’s appeal against sentence is dismissed.
We grant the Solicitor-General leave to appeal against
the failure to impose an
MPI. An MPI of seven and a half years imprisonment is
imposed.
Solicitors:
Crown Law Office, Wellington for Respondent
[1] R v A [1994] 2 NZLR 129 (CA).
[2] Ministry of Women’s
Affairs Restoring Soul: Effective Interventions for Adult Victim/Survivors of
Sexual Violence (Wellington, October 2009) at
31.
[3] Sentencing and
Criminal Justice (4th ed, Cambridge University Press, Cambridge,
2005).
[4] At
38.
[5] R v Willis
[1975] 1 WLR 292
(CA).
[6] R v Taylor
[1977] 1 WLR 612 (CA).
[7] R v Pawa [1978] NZCA 29; [1978] 2
NZLR 190 (CA).
[8] R v Pui [1978] 2 NZLR
193 (CA).
[9] R v Smith
[1980] NZCA 20; [1980] 1 NZLR 412
(CA).
[10] R v
Dutch [1981] NZCA 44; [1981] 1 NZLR 304
(CA).
[11] R v
Ulrich [1981] NZCA 54; [1981] 1 NZLR 310
(CA).
[12] Bruce Robertson
(ed) Adams on Criminal Law (looseleaf ed, Brookers) and Geoffrey Hall
Hall’s Sentencing (looseleaf ed, LexisNexis).
[13] “Appellate
Sentencing Guidance in New Zealand” (2006) 3 NZPGLeJ at
11.
[14] R v A
[1994] 2 NZLR 129
(CA).
[15] R v
Terewi [1999] NZCA 92; [1999] 3 NZLR 62
(CA).
[16] R v
Wallace [1999] NZCA 89; [1999] 3 NZLR 159
(CA).
[17] R v Mako
[2000] NZCA 407; [2000] 2 NZLR 170
(CA).
[18] R v
Taueki [2005] NZCA 174; [2005] 3 NZLR 372
(CA).
[19] R v Fatu
[2005] NZCA 278; [2006] 2 NZLR 72
(CA).
[20] R v
Hessell [2009] NZCA
450.
[21] R v Hereora
[1986] 2 NZLR 164 (CA).
[22]
R v Moananui [1983] NZCA 66; [1983] NZLR 537
(CA).
[23] At
[2].
[24] At [31] and
[70].
[25] At [14] and [22] –
[23].
[26] Makarian v The
Queen [2005] HCA 25, 228 CLR
357.
[27] Senior v
Police (2000) 18 CRNZ 340
(HC).
[28] R v Lowe
CA62/05, 4 July 2005.
[29]
R v Clark [1987] 1 NZLR 380 (CA).
[30] R v Billam
[1986] 1 WLR 349
(CA).
[31] At
383.
[32] At 383.
[33] R v Spartalis [1979] NZCA 43; [1979] 2 NZLR 265 (CA).
[34] At
131-132.
[35] R v
Millberry [2002] EWCA Crim 289, [2003] 1 WLR
546.
[36] Sentencing
Guidelines Council Definitive Sentencing Guideline - Sexual Offences Act
2003 (Sentencing Guidelines Secretariat, April 2007).
[37] Ministry of Women’s Affairs Restoring Soul: Effective Interventions for Adult Victim Surivors of Sexual Violence (Wellington, October 2009).
[38] Sentencing Establishment Unit Explanatory Note: Sexual Violation (Draft – July 2008) at [26].
[39] At [13].
[40] At
[13].
[41] At [2.7] and
[2.8].
[42] At
[1.20].
[43] Taueki
at [42].
[44] Sections 83 and 84.
[45] Section 85; Taueki at [46].
[46] R v Hill CA94/02, 21
October 2002.
[47] At
[2.16].
[48] At [2.19].
[49] R v Tikitiki
CA195/96, 10 August 1998; R v H (CA248/02), 31 October 2002 at
[15].
[50] R v Tawha
CA396/02, 26 February 2003 at
[19].
[51] R v
Castles CA105/02, 23 May
2002.
[52] R v
Tavinor CA313/94, 27 March
1995.
[53] R v Tai
CA251/97, 22 July
1997.
[54] R v K
(CA425-426/98), 3 May
1999.
[55] R v
Baird CA278/04, 25 November
2004.
[56] R v RHA
(CA63/07) [2007] NZCA 301 at [19].
[57] R v Accused
(CA265/88) [1988] NZCA 232; [1989] 1 NZLR 643 at 653.
[58] At
[2A.2].
[59] R v RHA
at [19].
[60] R
v M [2000] NZCA 24; [2000] 2 NZLR 60 (CA) at
[9].
[61] R v K
(CA558/08) [2009] NZCA 107.
[62] R v Singh
CA160/02, 26 November
2002.
[63] At
[21].
[64] At
[24].
[65] R v Tranter
CA486/03, 14 June 2004 at [95].
[66] At
[95].
[67] See, for example, PS
Rumney “Progress at a Price: The Construction of Non-Stranger Rape in the
Millberry Sentencing Guidelines” (2003) 66 MLR 870 at 873-876 and
883-884; H Clark “Judging Rape: Public Attitudes and Sentencing”
(ACSSA Newsletter 14 June 2007) at 20;
and Mel Smith and Warren Young Rape
Study (Department of Justice, Wellington, 1983) Volume 1 at
7–8.
[68] R v L
[2006] 3 NZLR 29 (CA) at [36] and [39]; R v Herbert CA70/98, 21 May
1998; R v A [2003] 1 NZLR 1 (CA).
[69] Taueki at
[35](b).
[70] At
[14].
[71] Mako
at [64].
[72] Taueki
at [53] - [54].
[73] At
[29].
[74] R v Murphy
CA310/96, 26 September 1996.
[75] R v Pehi CA86/06, 31
October 2006.
[76] R v
Hill CA94/02, 21 October
2002.
[77] R v
Wirangi [2007] NZCA
25.
[78] R v Stusky
[2009] NZCA 197.
[79] R v H (CA248/02), 31
October 2002.
[80] R v
Greaves [1999] 1 Cr App R (S) 319
(CA).
[81] R v Dunick
[2008] NZCA 482.
[82]
R v Batt [1987] 1 NZLR 760
(CA).
[83] R v
Castles CA105/02, 23 May
2002
[84] R v W
(CA87/93), 4 June
1993.
[85] R v
Anderson CA199/05, 2 November 2005.
[86] R v Stojanovich [2009] NZCA 210.
[87] R v Takiari [2007]
NZCA 273.
[88] R v Baird
CA278/04, 25 November
2004.
[89] R v
Hannagan CA396/04, 9 June
2005.
[90] R v
Morris [1991] 3 NZLR 641 (CA).
[91] R v Palmer [2000] 1 NZLR 546 (CA).
[92] R v V (CA442/94), 23
May 1995.
[93] R v Singh
CA348/05, 26 April
2006.
[94] R v
Amohanga [1989] 2 NZLR 308
(CA).
[95] R v Tipene
[2009] NZCA 343.
[96] R v Singh CA348/05, 26 April 2006.
[97] R v Campbell CA309/01, 26 November 2001.
[98] R v Roberts [1990] NZCA 192; (1990) 6
CRNZ 370 (CA).
[99] R v
Kahui [2008] NZCA
581.
[100] R v S
(CA64/06), [2007] NZCA
243.
[101] R v Proctor
[2007] NZCA 289.
[102]
R v N (CA88/05), 23 November
2005.
[103] R v
Gordon [2009] NZCA
145.
[104] R v
Martin CA251/99, 12 October 1999.
[105] R v Koroheke
CA189/01, 28 November
2001.
[106] R v E
(CA433/04), 6 April
2005
[107] R v P
(CA176/04), 7 October
2004.
[108] R v T
(CA445/03), 13 May
2004.
[109] R v
McNicholl CA176/02, 29 October
2002.
[110] R v
Neroj [2008] NZCA
184.
[111] R v Fisher
CA305/91, 18 November
1991.
[112] R v
MacKenzie [2007] NZCA
72.
[113] R v M
(CA459/99) [2000] NZCA 24; [2000] 2 NZLR
60.
[114] R v
Jackson (1997) 14 CRNZ 573
(CA).
[115] R v
Kincaid [1991] 2 NZLR 1
(CA).
[116] R v C
(CA43/98), 28 May 1998.
[117] R v Bell
CA393/05, 28 April 2006.
[118] R v Alletson
[2009] NZCA 205.
[119]
R v Harris CA320/93, 15 November
1993.
[120] R v
Stewart CA515/05, 15 August
2006.
[121] R v
Roach CA375/89, 8 February 1990.
[122] R v Patuwai
CA199/02, 11 March
2003.
[123] R v K
(CA558/08), [2009] NZCA
107.
[124] R v P
(CA86/95), 10 August
1995.
[125] R v H
(CA101/06), 18 September
2006.
[126] R v Grinder
CA78/03, 26 August
2003.
[127] R v Te
Tauri CA188/02, 15 July 2003.
[128] At [60].
[129] At [74].
[130] R v Brown [2002] NZCA 243; [2002] 3
NZLR 670.
[131] R v
Gordon [2009] NZCA 145 at
[17].
[132] R v
Laungaue CA32/06, 1 September
2006.
[133] R v Wellm
[2009] NZCA 175 at [23].
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