R v Rogers [2016] NZDC 6615 (15 April 2016)

Last Updated: 7 November 2016

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT PALMERSTON NORTH

CRI-2016-054-000235 [2016] NZDC 6615

THE QUEEN

v

_{ISAAC DAVID ROGERS}

Hearing:	15 April 2016
Appearances:	E FitzHerbert for the Crown F Steedman for the Defendant
Judgment:	15 April 2016

_{NOTES OF JUDGE S B EDWARDS ON SENTENCING}

[1] Isaac David Rogers, you appear for sentence on two charges of sexual violation by rape.

[2] The circumstances of your offending were that you and your victim met via an online dating application. Your victim had recently moved to Palmerston North. On 25 January this year, you met up for the first time and spent the day together, shopping in the afternoon and then going out for dinner before returning to her house.

[3] You were both drinking and became intoxicated. You had consensual sex in the victim’s bedroom. Following this you both fell asleep. The victim had put on pyjama pants and a top before she went to sleep.

[4] You woke up during the night, started kissing her neck, then moved her top and kissed her breasts. You then removed her pyjama pants and raped her. The

R v ISAAC DAVID ROGERS [2016] NZDC 6615 [15 April 2016]

victim was heavily asleep and continued to sleep. A short while later you repeated your actions, again kissing her on the neck and breasts before raping her. She woke during the second rape, realised what you were doing and told you to stop and leave.

[5] Your victim did not suffer physical injuries but has been highly traumatised by this incident. She experienced tenderness and discomfort for several days afterwards. She also incurred some financial costs through replacing the bedding and bed, because she could no longer bear to sleep in them.

[6] The emotional impact has been huge. She has experienced difficulty sleeping and at times has slept in an armchair, rather than in bed. She spent a period of time afterwards unable to focus on eating, sleeping or thinking, but simply crying.

[7] She has a young son, who fortunately was away at the time but she was concerned about the emotional state she was in when he returned to her. She was due to start a new job but most of the staff where she was going to start work were male and at that time she simply could not face working in a male-dominated environment. Your actions have had a significant and ongoing impact on her ability to trust any man. Mentally and emotionally she has felt lost and disoriented.

[8] She expressed concern that you get help in her original victim impact statement. She considers this important because she wants you to learn from what you have done, so that there is never any similar incident again. She urges you to consider the effect your actions have had on her and her family, including her son, and friends. She expresses some sympathy for your family and friends and the position that they are in, with supporting you.

[9] She also expressed concern about what you portrayed in your online profile. She considered you to be a nice church-going man, who was looking to start a friendship. Her profile was similar and she considered this meant you were honest and trustworthy, which turned out not to be the case.

[10] In an updated report the victim has commented on the restorative justice process, which she was keen to participate in. Unfortunately, because of the decision

that was made that the two of you should not participate in restorative justice face- to-face, she does not feel the process has been a helpful one for her. She had wanted to hear a genuine apology from you, face-to-face and found difficulty seeing that in the written responses to her questions, which was the way the restorative justice process proceeded.

[11] The purposes and principles of sentencing I must take into account in sentencing you today include the need to hold you accountable for the harm your offending has done and to provide for the interests of your victim. I must denounce the conduct you were involved in and impose a sentence which acts to deter you and others from similar offending. I need to assess the seriousness of your offending in comparison with other cases and sentence you in a way which is consistent with appropriate sentencing levels.

[12] We have a guideline judgment for sentencing for the offence of sexual violation put in place by the Court of Appeal. This guideline judgment, R v AM,1 contains four bands for rape offending. The Court of Appeal outlined a number of what is called culpability assessment factors, or factors which make the offending worse. The purpose of those factors is not only to assist the Judge to decide which band the offending in any case falls into, but also where within that band the

offending is appropriately placed. There is some overlap between the sentencing

_bands.

[13] The Crown submits that your offending falls within band 2 but towards the lower end of that band. Band 2 provides for a starting point range of between seven

_{and 13 years’ imprisonment.}

[14] Mr Steedman, on your behalf, submits that your offending is appropriately within band 1, which provides for starting points of between six and eight years’ imprisonment. Mr Steedman submits that your offending is properly placed towards the lower end of that band and that the starting point should be between six and seven years.

[15] I consider your offending is appropriately placed towards the upper end of band 1 and the starting point I adopt is seven and a half years’ imprisonment. The reason for this is that I consider the following culpability factors are present towards a low or moderate degree, which in accordance with R v AM guidance, requires a higher starting point within the six to eight year range covered by band 1.

[16] First the extent of the harm caused; that it is plain that your victim has suffered severe emotional harm from your offending. Second, the scale of your offending. While on one view what you did can be viewed as one continuing incident, there were two rapes and you indecently assaulted her prior to committing both rapes. The next factor is the vulnerability of your victim. She was asleep; she was heavily intoxicated to the extent that she did not even wake up during the first rape.

[17] I do not consider there was a breach of trust in this case sufficient to warrant separate consideration in assessing the appropriate starting point. The case the Crown refer to by way of comparison, Burrell v R,2 involved a relationship of some duration and the complainant in that case had made it clear that she was not

_{interested in any sexual contact whatsoever that night.}

[18] I also do not consider this is a case where any significant degree of premeditation is apparent. You and your victim have heard the discussion between counsel and me today about whether the fact there was consensual sexual activity earlier in the evening is a factor to be taken into account in assessing the seriousness

_{of rape offending.}

[19] The Court of Appeal considered this difficult issue in the decision of R v AM. They acknowledged it was a difficult and controversial issue. They decided to adopt the approach that in limited circumstances some account could be taken of earlier consensual activity. The reason they did this (which is referred to paragraphs 58 and 59 of the decision) is that it can correlate with a lack of premeditation.

[20] What that means Mr Rogers, is that while the fact there was consensual sexual activity does not detract in any way from the fact that you raped your victim twice, premeditation and pre-planning is always a factor which makes sexual offending more serious. I do not consider this is a case where that element, premeditation, was present.

[21] Your personal circumstances are that you are 30 years of age and you have no previous convictions whatsoever. You have never been in a long-term relationship. You struggle with depression, lack of self esteem and at times with what your counsel describes as self loathing. You have the support of your family and your church. You have a strong faith which has always been an integral part of your life. Your inability to find emotional fulfilment through a committed relationship has led you to engage in casual sexual encounters, but you struggle reconciling that with your religious beliefs.

[22] You have acknowledged responsibility for your offending and expressed your remorse from the outset. Following a text message exchange with your victim the following morning, you took yourself to the police station voluntarily and asked to be interviewed. This occurred before the offending had been reported.

[23] You entered guilty pleas at the very earliest opportunity and against the advice of your lawyer. While you now unreservedly accept that your victim was asleep when you raped her, your counsel submits you should be sentenced on the basis that you did have a belief at the time, albeit affected by alcohol, that she was awake. However, you accept there was no reasonable basis for that belief.

[24] You were always willing to engage in the restorative justice process. You are undergoing counselling in prison at present and the pre-sentence report writer assesses you as highly motivated to undergo specialist treatment during your sentence of imprisonment.

[25] From that starting point of seven and a half years’ imprisonment, I am allowing a discount of 10 months for your previous good character, your remorse, your willingness to attend restorative justice and to undertake psychological

treatment to address the issues which have contributed towards your offending. That reduces the sentence to one of six years and eight months’ imprisonment. You are entitled to the full available discount for your guilty pleas. The Crown does not take any issue with that whatsoever. The pleas were entered at the very earliest possible opportunity and accompanied by genuine remorse. Allowing the appropriate discount reduces the end sentence to one of five years’ imprisonment.

[26] Issac Rogers, on each of these charges of rape, you are sentenced to imprisonment for a period of five years.

S B Edwards

District Court Judge