E v The King

[2023] NZHC 2829

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2023-406-11

[2023] NZHC 2829

BETWEEN

E

Appellant

AND

THE KING

Respondent

Hearing:

5 October 2023

Counsel:

M Zintl for Appellant

M O’Donoghue for Respondent

Judgment:

9 October 2023

JUDGMENT OF ISAC J

[Sentence appeal]

Introduction

[1]                 Mr E pleaded guilty to the sexual violation by rape of his 24-year-old stepdaughter. He was sentenced by Judge Reilly to four years and two months’ imprisonment.1

[2]Mr E now appeals against that sentence. He advances two grounds:

(a)First, the Judge erred in adopting a starting point of seven years’ imprisonment. It is submitted that given the short duration of the offending, and that the defendant stopped himself from continuing, the starting point ought to have been six to 12 months lower.

1      R v E [2023] NZDC 14864.

E v R [2023] NZHC 2829 [9 October 2023]

(b)Second, the combined discounts for remorse and previous good character of 10 per cent were insufficient. Discounts for these factors totalling 20 per cent should have been provided.

The offending

[3]                 The victim was the appellant’s stepdaughter. The appellant was in a long-term domestic relationship with the victim’s mother. At the time of the offending, the appellant was aged 57 and the victim 24.

[4]                 On 25 February 2023, the appellant, the victim and the victim’s mother socialised together at a local tavern in Blenheim. Nothing untoward occurred and they enjoyed each other’s company, before walking home together at around 10 pm.2

[5]                 At home they sat in the lounge to talk and watch television. The appellant retired to bed and was shortly followed by the other two. The victim cuddled up to her mother in the bed, in between her mother and the appellant. During the night the appellant awoke to the victim asleep next to him. He pushed her underwear aside and inserted his penis into her vagina. He had sex with her for no more than a minute before realising the significance of what he was doing. At that point he stopped, rolled over and went back to sleep.3

[6]                 When spoken to by police the appellant expressed shame and remorse, acknowledging that the act had occurred when the victim was asleep and in circumstances where he knew she could not consent.4

Judgment under appeal

[7]                 After setting out the facts, the Judge observed that the appellant is a 57-year-old man of “exceptionally good character” with no relevant previous convictions.5 There was significant victim impact as a result of the offending, which had left the victim

2 At [1].

3 At [2].

4 At [3].

5      At [4]–[5] and [9]–[12]. The Judge referred to several letters of support by the family and employers of the appellant which describe him as a hard-working, caring and loving person whose offending was totally out of character.

feeling that her life had been destroyed.6 Her Honour also noted the appellant’s letter of apology, which she accepted was genuine.7

[8]…