Ay v The King - [2025] NZHC 831

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ay v The King

Details

AGLC: Ay v The King [2025] NZHC 831
Case: [2025] NZHC 831
Decision Date: 10 April 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Benjimin Bora Ay appealed his sentence for supplying MDMA, indecently assaulting a young person, and having sexual connection with a young person. The District Court sentenced him to three years' imprisonment, which Ay argued was manifestly excessive and failed to adequately account for his guilty plea, good character, and rehabilitative prospects. The Crown submitted that the sentence was appropriate and within the range available to the District Court Judge.

The High Court found that the District Court's starting point of five years' imprisonment was manifestly excessive. While the offending involved aggravating factors like age disparity and victim vulnerability, the Court found the case to be less serious than some of the cases cited by the Crown. A starting point of four years and five months' imprisonment was considered more appropriate. The Court also found that the 40 per cent discount provided by the District Court for Ay's mitigating circumstances was sufficient. As a result, the Court reduced the starting point and adopted an end sentence of two years and seven months' imprisonment. However, home detention was not considered appropriate given Ay's offending.

In conclusion, the Court allowed Ay's appeal as to the starting point and reduced his sentence to two years and seven months' imprisonment. The Court found that the District Court's overall sentence, while flawed in its starting point, was not manifestly excessive or wrong in principle once the appropriate starting point was applied.

Orders