Ay v The King
[2025] NZHC 831
•10 April 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-000074
[2025] NZHC 831
BETWEEN BENJIMIN BORA AY
Appellant
AND
THE KING
Respondent
Hearing: 7 April 2025 Appearances:
P Osborne for the Appellant
A Al-Janabi for the Respondent
Judgment:
10 April 2025
JUDGMENT OF ANDERSON J
This judgment was delivered by me on 10 April 2025 at 4.00 pm.
……………………………… Registrar/Deputy Registrar
Solicitors:
Kayes Fletcher Walker Ltd, Manukau
AY v R [2025] NZHC 831 [10 April 2025]
Introduction
[1] Benjimin Ay pleaded guilty to supplying MDMA,1 indecently assaulting a young person,2 and two charges of having sexual connection with a young person.3 Judge G A Andrée Wiltens sentenced him to three years’ imprisonment.4
[2] Mr Ay appeals his sentence on the grounds that the starting point was manifestly excessive; the combined discount of 25 per cent for his guilty plea, prior good character and prospects for rehabilitation was inadequate; and his sentence failed to take into account that imprisonment would be disproportionately severe on him.
[3] The respondent submits that the starting point and discounts provided were well within range available to the Judge. Further, it submits that although the Judge took into account the effects of imprisonment on Mr Ay, he correctly concluded that home detention was out of the question.
Approach on appeal
[4] This Court must allow the appeal if it is satisfied that there is an error in the sentence imposed, and that a different sentence should be substituted.5 The overall question on appeal is whether the sentence was manifestly excessive or the sentence is wrong in principle.6
[5] If the process by which a sentencing judge arrives at the end sentence was flawed, but the sentence nonetheless can be properly justified by accepted sentencing principles, then the appeal Court will not intervene.7 Nor will it artificially tailor a sentence to bring it within the range where home detention is available.8
1 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(b). Maximum penalty: 14 years’ imprisonment.
2 Crimes Act 1961, s 134(3). Maximum penalty: seven years’ imprisonment.
3 Crimes Act, s 134(1). Maximum penalty: 10 years’ imprisonment.
4 R v Ay [2025] NZDC 2111.
5 Criminal Procedure Act 2011, s 250(2).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].
7 At [33] and [36].
8 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [35] citing R v Edwards [2006] 3 NZLR 180 (CA) at [24].
The offending
[6] Mr Ay was 28 years old at the time of the offending. The victim was 13 years old.
[7] On the night in question, Mr Ay and one of the victim’s female friends picked her up from her home in Māngere. The girls asked Mr Ay how old he was, and he responded that he was 26. Mr Ay did not ask the victim or her friend for their ages.
[8] Mr Ay stopped to purchase alcohol from a liquor store for the girls. He then provided MDMA to each of them which they consumed. In addition to some MDMA, the victim consumed six or seven cans of passionfruit cruiser. The victim was therefore intoxicated by the time they arrived at Mr Ay’s house.
[9] The three went to the garage area where Mr Ay’s bed was situated. While there, the victim got into the bed with Mr Ay and began hugging and kissing him. Mr Ay then touched the victim’s bottom and rubbed her anus with his thumb. The victim said, “no don’t” and moved his hand away from her underwear.
[10] Mr Ay then pulled the victim’s pants down. She was half asleep at the time. He began to lick and kiss her anus. She told him to stop, and he did. She then pulled her pants up. Shortly after this, Mr Ay did the same thing again. The victim against told him to go away.
[11] Finally, Mr Ay pulled the victim’s pants down and put his penis into her vagina. He removed it and then inserted it again. Due to the victim’s intoxication, she did not protest.
[12] That is the essence of what happened. It is worth noting that the second count of having sexual connection with a young person, relating to Mr Ay licking the victim’s anus, is a representative charge.
District Court decision
[13] After summarising the offending and noting that the prosecution sought a starting point of five years and four months’ imprisonment, the Judge adopted a starting point of five years’ imprisonment.
[14] The Judge then acknowledged Mr Ay’s guilty plea, although he commented that it did not occur at an early stage. For this, combined with Mr Ay’s lack of previous convictions and prospects of rehabilitation, the Judge gave a discount of 25 per cent.
[15] The Judge then acknowledged Mr Ay’s personal circumstances including isolation from his parents and mental health issues. For those factors, the Judge gave an additional discount of 15 per cent.
[16] The Judge rejected a discount for remorse. Therefore, the end sentence came to three years’ imprisonment and the Judge noted that home detention was out of the question.
Starting point
[17] Mr Osborne, for Mr Ay, submits that the total starting point of five years’ imprisonment for all of the offending was manifestly excessive. Additionally on this point, he submits that the reasons given by the Judge for the sentence, which concerned little more than a reference to the prosecution’s proposed starting point, were inadequate.
[18] I need not explicitly address Mr Osborne’s submission as to reasons except to say that, in the circumstances of this case, where the Judge summarised the offending, provided a starting point and a set out the discounts he provided, there is enough information for an appellant court to decide if the sentence is within range.
Appellant submissions
[19] As to the starting point itself, Mr Osborne has referred me to a number of cases under s 134 of the Crimes Act 1961 in support of his submission that the starting point was manifestly excessive. He submits that the starting point ought to have been four
years’ imprisonment comprising three years for the sexual conduct, seven months for the indecent assault and five months for the drug offending. I briefly summarise the cases referred to by Mr Osborne below:
[20] The first case is R v H.9 In that case, the Court of Appeal declined leave to appeal out of time against a sentence of three and a half years’ imprisonment on representative charges of sexual connection with a young person and sexual connection with a dependent (the same person). The girl was 15 years at the time and the appellant was a close friend of her mother. The age disparity between the girl and the appellant was 37 years. A relationship developed between the appellant and the girl when the girl’s mother returned to Australia and left her with another family friend to stay. During this period, sexual intercourse occurred between the girl and the appellant on 15 to 20 occasions before the girl turned 16.
[21] The District Court Judge had adopted a starting point of three years, six months’ imprisonment. He had not allowed for any mitigating factors. The Court of Appeal said that following legislative changes to the maximum penalty for this offending “the starting point on conviction for sexual connection under s 134 could be fixed at four years’ imprisonment”. The Court of Appeal felt a starting point of five years’ imprisonment could easily have been adopted and declined the application to appeal out of time.
[22]The second case is R v Johnson.10 In that case, the Court observed:11
We consider that the four year starting point in R v H is still a useful reference point in relation to sentencing for sexual connection with young persons, where the offending shares features present in that case. Particular aggravating features in R v H were abuse of trust, a significant age gap between the offender and the victim, full penetrative sex on a number of occasions, and significant adverse effects on the victim. Where aggravating features in R v H are present, a starting point of four years may be appropriate. Other aggravating factors not present in R v H may be seen as increasing culpability. Such features could include grooming, or abusive and demeaning behaviour. Where there has been no breach of trust as in R v H but the same aggravating features are present, a lower starting point will be appropriate. A different combination of aggravating and mitigating factors might produce yet another result. It follows that the starting point of four years should be seen
9 R v H [2008] NZCA 237.
10 R v Johnson [2010] NZCA 168.
11 At [17].
as no more than a mid-point in the range of offending where there is moderate culpability.
[23] In R v Johnson itself, Mr Johnson pleaded guilty to seven counts of sexual connection with a young person. The victim had previously been in a relationship with a relative of Mr Johnson. When she was aged 15, and he 36, Mr Johnson and the victim began ringing and texting each other about having sex. Shortly afterwards, they began having sex which she described as being rough and demeaning. Intercourse continued regularly for approximately three months before the victim broke contact.
[24] The Court of Appeal, on a Solicitor-General appeal, increased the starting point from three years and six months to three years and nine months. The Court identified age discrepancy; targeting (as opposed to grooming); frequency of sexual contact; rough and demeaning contact; and effects on the victim as aggravating factors.
[25] The third case is R v R.12 In that case, a 17-year-old had sexual contact with a 12-year-old girl. The two had become Facebook friends. The victim disclosed she was 12. They arranged to meet, and Mr R went to her house, climbed through the window and they had sexual intercourse in her bed. This happened twice. The District Court Judge adopted a starting point of two years and nine months’ imprisonment. This was upheld on appeal.
[26] The fourth case is R v Edwards.13 In that case, Mr Edwards was sentenced on one representative count of sexual connection with a young person and an associated grooming charge. He was 20 and the victim 14. They initially formed a relationship on Facebook. Mr Edwards suggested a long-term relationship and moved to Auckland to pursue it. One day the victim travelled to Mr Edwards’ address and stayed there for three days. During that time, Mr Edwards had sexual intercourse with her on a number of occasions. A starting point of three years’ imprisonment was adopted. The Judge identified the vulnerability of the victim; planning and predatory behaviour; frequency of the conduct; and the victim impact as aggravating features. The starting point was uplifted by six months for the grooming charge.
12 R v R [2015] NZHC 3305.
13 R v Edwards [2018] NZHC 256.
[27] The final case is R v Hessell.14 It involves quite different circumstances in that the mother of the two victims facilitated the offending and there was no penetrative sex. I do not consider it to be of assistance.
[28] On this basis, Mr Osborne submits the overall starting point of five years’ imprisonment was too high.
Crown submissions
[29] In response, the Crown submits the starting point adopted by the Judge was within range. It begins by submitting that there were five aggravating features present in this case being age disparity; vulnerability of the victim; premeditation; harm to the victim; and the use of alcohol and drugs.
[30] In addition to R v Johnson, the Crown refers to two additional cases in support of its position. The first is Trewavas v R.15 In that case, the offender had pleaded guilty to supplying cannabis to a young person, three counts of sexual connection with a young person and possession of cannabis for sale. The offender was 30 years old and the victim 15.
[31] He supplied her with cannabis for approximately six months. One day, she visited his house to buy cannabis. They had a spa and shared a joint together before he digitally and orally penetrated her and went on to engage in full sexual intercourse with her. He then gave her a bag of cannabis and she left.
[32] The Judge adopted a starting point of two years and nine months’ imprisonment for the sexual offending. The Judge noted age disparity; victim vulnerability;16 unsophisticated premeditation; and victim impact as aggravating factors. The Judge then uplifted the sentence by 12 months for the drug offending. Johnstone J upheld the sentence on appeal.
14 R v Hessell [2009] NZCA 450.
15 Trewavas v R [2023] NZHC 3533.
16 The Judge noted that the victim was not an “equal partner” when engaging in sexual intercourse because Mr Trewavas was her drug supplier.
[33] The second case in R v Edgerton.17 In that case, the offender was sentenced for sexual connection with a young person, supplying methamphetamine and receiving stolen property as well as breaching his release conditions. The 52-year-old offender and 15-year-old victim had met when the victim was with some friends smoking cannabis. The offender left the victim a note and they subsequently met privately. On that occasion, the offender wired the doors of a shed they were in shut and provided the boy with methamphetamine which he smoked. The victim then agreed for the offender to perform oral sex on him and agreed to perform oral sex on the offender.
[34] The Judge adopted a starting point of three years and nine months’ for the sexual offending. The Judge explicitly noted victim vulnerability and multiple sexual acts as aggravating features. He then uplifted the sentence by 18 months to reflect the drug and other charges.
[35] The Crown submits the index offending was worse than in Trewavas as the victim was younger and more vulnerable than the victim in that case. It submits that the offending is at least as bad as in Edgerton while again noting that the victim here is younger than in that case. It also notes that the offending escalated to penetrative sex in this case whereas it did not in Edgerton. The Crown submits the offending is more serious than the cases cited by the appellant in support of a lower starting point.
[36] On the basis of these cases, the Crown submits that a starting point of three years and nine months’ imprisonment would have been appropriate for the sexual connection charges. The Crown then says a seven-month uplift for the indecent assault charge and an eight month uplift for the drug offending would have been justified. That brings the starting point to five years’ imprisonment which is appropriate in the circumstances.
Analysis
[37] Prior to the hearing, Mr Osborne and the Crown agreed that a seven month uplift was appropriate for the indecent assault charge. In my view, that charge was not necessarily best dealt with through a discrete uplift but instead by considering it as
17 R v Edgerton [2020] NZHC 1694.
part of the sexual offending on a totality basis as it occurred at the same time and in the same context as the other sexual offending. I raised this with counsel at the hearing. Mr Osborne agreed that a distinct uplift was not needed for the indecent assault offending. Counsel for the Crown accepted that a discrete uplift may not be necessary however the Crown maintained its position that regardless of the process of arriving at the starting point, five years was within range.
[38] Whatever process is adopted, the effect of the Crown’s submissions is that a combined starting point of four years and four months for all of the sexual offending would be within range. Having considered the cases put to me by counsel, I am not satisfied that is the case.
[39] In R v Johnson, the Court of Appeal has suggested that a starting point of four years’ imprisonment would be appropriate in a case that shares the aggravating features in R v H. On balance, I consider this case to be slightly less serious than R v H. In that case, there was a breach of trust which is not present here and while penetration occurred twice in this case, R v H involved penetrative sex on numerous occasions across the space of months. The age gap was also somewhat greater. I acknowledge the victim in this case was younger than in R v H, and the appellant supplied her with drugs and alcohol. These factors increase the seriousness of this offending but again, on balance, I do not see it as more serious.
[40] In R v Trewavas the cannabis supply appears to have had a somewhat transactional association with the sexual offending, which is an aggravating feature. Nonetheless, I accept that this case is somewhat more serious Trewavas. In both cases, the offender provided the victim with drugs before having sex with them. However, in this case, the victim was significantly more vulnerable being both younger and more affected by the substances she had been supplied with than the victim in Trewavas.
[41] I also accept this case is more serious than R v R. That case involved a victim the same age as the victim in this case but without the added feature of drugs and alcohol. I also note that the offender was much younger.
[42] As for Edgerton, which the Crown particularly relied on, I consider the sexual element of that offending, for which a starting point of three years and nine months imprisonment was set, to be no less serious than this case. While the sexual conduct did not extend to penetrative sex, that case had the added element of the offender wiring the doors shut and a much larger age gap. Additionally, the victim was under the influence of more serious drugs having been provided methamphetamine by the offender.
[43] All in all, I consider a starting point of no more than three years and nine months’ imprisonment being appropriate for all of the sexual offending in the present case.
[44] As for the uplift for the supply of MDMA, I accept the Crown’s submission that there is no double counting in uplifting for this offence as well as considering it to be an aggravating feature of the index offending. I also accept the Crown’s submission that an uplift of at least eight months’ imprisonment was appropriate for the charge of supplying MDMA. This is less than the uplift in Trewavas for supplying a less serious drug. However, the supply in that case was extensive and there was an additional charge of possessing cannabis for supply. I consider eight months to be appropriate.
[45] Therefore, my view is that a starting point of no more than four years and five months’ imprisonment was appropriate for the offending. Put another way, from a totality perspective, five years’ imprisonment was a manifestly excessive starting point. I reduce it to four years and five months’ imprisonment.
Discounts
Appellant submissions
[46] Mr Osborne submits that in place of the combined 25 per cent discount that the Judge gave Mr Ay for his guilty plea and rehabilitative prospects, Mr Ay ought to have received 20 per cent for his plea alone and an additional 15 per cent for his good character.
[47] As to guilty plea, Mr Osborne submits that Mr Ay’s guilty plea spared the victim from having to give evidence in Court. A significant discount should be awarded to reflect this.
[48] As to rehabilitative prospects, Mr Osborne submits that the appellant was assessed as being a below average risk of reoffending by a psychologist. That report also notes that the appellant is remorseful. If he were to receive home detention, the appellant would be able to engage in rehabilitative programmes. It is also noted that the appellant was employed full time and supported his mother and brother by paying the mortgage on the family home. While the Provision of Advice to Courts (PAC) report states the appellant would likely lose his employment, Mr Osborne submits there is evidence he is a hardworking man who could regain employment and possibly even while on home detention. Mr Osborne relies on R v Findlay18 and Davidson v R19 in this respect. In each case, a discount of 25 per cent was given for previous good character. One justification for the discounts was to recognise the greater potential for rehabilitation where community involvement and good character bears witness to a reduced probability of offending.
Crown’s submissions
[49] In response, the Crown say that a discount of 15 per cent for Mr Ay’s guilty plea was within range. As to rehabilitative prospects, the Crown submits that a discount of 10 per cent was appropriate. The Crown acknowledges that Mr Ay appeared to be making positive financial contributions to his family, but beyond this there was no additional evidence as to his good character. Therefore, the Crown submits that a discount of 10 per cent, while perhaps at the lower end of the available scale, was appropriate. The Crown also submits that the discount must be seen in the context of the 15 per cent discount the Judge gave Mr Ay for his unfortunate background.
18 R v Findlay [2007] NZCA 553.
19 Davidson v R [2011] NZCA 356.
Analysis
[50] In all the circumstances, I agree with the Crown that the discounts provided by the Judge to Mr Ay were within range. As to guilty plea, Mr Ay was first charged on 14 September 2023 though I acknowledge those charges included sexual violation. However, by February 2024, those charges had been changed and Mr Ay’s plea did not come until October.. The plea did of course prevent the need for a trial where the victim would have needed to give evidence. I accept a significant discount is appropriate in those circumstances, but 15 per cent is not below range.
[51] I also note that the Judge, in rejecting a separate discount for remorse, specifically noted that Mr Ay had insisted on DNA testing. As the Judge said, he was entitled to do so, but it does reduce the mitigation available.
[52] As to rehabilitative prospects, I also agree that 10 per cent was sufficient. The cases cited by the appellant both involved individuals with much more pronounced records of service in terms of their past conduct. While I acknowledge the contribution Mr Ay made to his family by paying the mortgage on their house as well as the positive comments about his prospects for rehabilitation in the PAC report, no more than 10 per cent was necessary here. As the Crown submits, this discount also has to be seen in light of the 15 per cent discount the Judge gave to Mr Ay for his background. That discount was generous. Therefore, a combined discount of 40 per cent for Mr Ay’s personal mitigating circumstances was certainly more than sufficient in this case. I do not consider the Judge made any error.
[53] Mr Osborne’s final submission is that the Judge overlooked that prison would be disproportionately severe on My Ay because of the consequence of that on his family and the risk that he may lose his house. The Judge was plainly cognisant of these impacts. This submission largely overlaps with Mr Osborne’s submission as to rehabilitative prospects. Given I have rejected that point, I do not consider I need to address this final point in any more detail than to say I do not consider the Judge overlooked anything.
Result
[54] The appeal succeeds as to starting point. I adopt a reduced starting point of four years and five months as appropriate. Applying the 40 per cent discount given by the Judge, the end sentence is two years and seven months. In my view standing back, that sentence is appropriate. Home detention is not available.
Anderson J
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