F (CA126/2025) AND THE KING - [2025] NZCA 385

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR

IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203

OF THE CRIMINAL PROCEDURE ACT 2011. SEE

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR

IDENTIFYING PARTICULARS OF ANY PERSON UNDER THE AGE OF 18

YEARS WHO IS A COMPLAINANT OR WHO APPEARED AS A WITNESS

PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA126/2025

[2025] NZCA 385

BETWEEN F (CA126/2025)
Appellant
AND THE KING
Respondent

Hearing:	21 July 2025
Court:	Collins, Jagose and Gault JJ
Counsel:	N M Dutch for Appellant
N J Wynne for Respondent

F appeals against his sentence of five years and seven months’ imprisonment

imposed by Judge Cameron in the District Court at Tauranga on 10 February 2025,[1]

[1] Citation omitted [judgment under appeal]. The appellant’s name is anonymised throughout this

after a jury found him guilty of two representative charges of sexual violation by rape.[2]

[2] Crimes Act 1961, ss 128(1)(a) and 128B; maximum sentence, 20 years’ imprisonment.

Background

F is 25 years old. At the time of the index offending, he had no prior criminal

history, but now has a conviction for subsequently receiving property,[3] for which he

[3] Sections 246 and 247(a); maximum sentence, seven years’ imprisonment.

was fined $500 and ordered to pay $30 in court costs.

Judgment under appeal

The Judge recounted:[4]
[4] Judgment under appeal, above n 1.

[2] The defendant is the older cousin of the victim. Between
November 2014 and November 2016, the victim lived [redacted] with her
mother and her older brother. On school days it was normal for the victim and
her brother to be home alone for an hour or so after school until their mother
arrived home from work. The defendant would often go home with the victim
and her brother after school and hang out with them at least several times a
week during that time.

[3] The defendant was aged between 15 and 17 years between
November 2014 and November 2016. The victim was aged between seven
and eight years’ old between 14 November 2014 and 14 November 2016. Her
date of birth is 14 November 2007.

[4] On regular occasions between 14 November 2014 and
14 November 2016, the defendant was at the victim’s address [redacted] with
the victim and her brother. The victim’s brother would often walk alone to the
nearby Four Square shop, which was situated around the corner, to buy some
food. This would leave the defendant and the victim home alone.

[5] After the victim’s brother left, the defendant would lock the front door.
The defendant would throw the victim onto the couch in the lounge, quickly
removing her clothes before putting his penis inside her genitalia and having
sexual intercourse with her. The victim described in her evidence that: “This
was happening all the time”, hence the first representative charge.

[6] In relation to the second representative charge, on other occasions the
victim was…

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.

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Details

Case: [2025] NZCA 385
Decision Date: 4 August 2025 at 10.30 am

CaseChat Overview and Summary

The appeal in F (CA126/2025) v R was brought by the appellant, F, against his conviction and sentence for two counts of sexual violation by rape. The appeal was heard by Collins, Jagose, and Gault JJ in the Court of Appeal of New Zealand. F, who was 25 years old at the time of the appeal, had been found guilty by a jury in the District Court at Tauranga of raping a young girl, who was his cousin, on multiple occasions between 2014 and 2016 when he was aged between 15 and 17 years and the victim was between seven and eight years old. The primary issue before the Court of Appeal was whether the sentence of five years and seven months' imprisonment imposed on F was manifestly excessive. The appellant's counsel argued that the guideline judgment R v AM should not be applied prescriptively to young offenders and that the sentence should reflect the age of the offender at the time of the offending. The respondent contended that the sentence was appropriate and within the range justified by accepted sentencing principles.

The Court of Appeal found that the starting point for F’s offending, which excluded consideration of his age at the time of the offending, was appropriately set at eight years by the Judge. The Court held that age is a factor considered in the second stage of the sentencing process, not in determining the starting point. The Court observed that the Judge’s starting point was generous, taking into account the serious nature of the offending. Regarding the discount for F’s youth, the Court held that the 30 per cent discount was within the range of available discounts and appropriately tempered by the appellant’s lack of insight and accountability. The Court concluded that the sentence imposed was not manifestly excessive and dismissed the appeal.

The appeal is dismissed, and the original sentence stands. The Court’s decision reaffirms the principle that while age is a mitigating factor, it does not influence the starting point for sentencing serious sexual offences, which should be determined by the nature and culpability of the offending.

Orders