F (CA126/2025) AND THE KING
[2025] NZCA 385
•4 August 2025 at 10.30 am
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 in her bedroom playing with her toys. The defendant entered the
bedroom, threw the victim onto her bed, removed her clothes and put his penis
inside her genitalia and had sexual intercourse. At the time the victim was
crying. Each time the defendant would finish before the victim’s brother
returned home. The defendant told the victim that she had better not tell her
brother what happened or else he would tell him that she was the one who
wanted to do it. …
The Judge was “satisfied that the evidence of the victim and her brother
established that the offending occurred five to 10 times”.[5] He accepted “in all
probability, the offending would have occurred while the defendant was 15 and
16 years of age”.[6] He did not accept the defendant’s evidence “he moved away to live
with his father when he was 16 years of age”.[7]
[5] At [7].
[6] At [10]. Also, because the offence is a category 3 offence for which the maximum penalty is
[7] At [11].
The Judge noted the “significant negative emotional impact suffered” by the
victim, recounted in her victim impact statement given when she was 16.[8] F continued
to deny the offending.[9]
[8] At [13].
[9] At [14].
The Judge considered the guideline judgment, R v AM (CA27/2009),[10]
applied,[11] and the defence submission that “had the offending been dealt with
immediately after it had occurred, then the defendant would have been subject to the
Youth Court jurisdiction” did “not assist” F, given the complaint was not made until
September 2021.[12]
[10] R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
[11] Judgment under appeal, above n 1, at [15].
[12] At [16].
The Judge accepted F’s offending was “largely opportunistic” but premeditated
“to a small degree”,[13] committed against a “clearly very vulnerable” victim,[14] with
harm to her also being “present to a significant degree”.[15] His Honour considered “the scale of the offending” was “prolonged” and occurred “on a number of occasions”
over the two-year period,[16] and committed in “limited” breach of the victim’s mother’s
trust “to be with her daughter after school”.[17]
[13] At [17].
[14] At [18].
[15] At [19].
[16] At [20].
[17] At [21].
The Judge assessed the combination of those aggravating factors, “increasing
culpability to a moderate degree”, brought F’s offending within band 2 of R v AM,[18]
with a starting point range of seven to 13 years’ imprisonment.[19] Having regard to
cases to which he was referred,[20] the Judge took a starting point of eight years’
imprisonment,[21] discounted by a “tempered” 30 per cent for F’s youth,[22] resulting in
F’s end sentence.[23] The Judge considered “no further discount for good character
ought to be applied”, as the duration of his index offending and his subsequent
conviction for receiving meant “[h]e cannot be described as a person of good
character”.[24]
Submissions on appeal
[18] R v AM (CA27/2009), above n 10, at [90(b)].
[19] Judgment under appeal, above n 1, at [22].
[20] At [23]–[28], including Solicitor-General v Rawat [2021] NZHC 2129; W (CA722/2021) v R
[21] At [25].
[22] At [27]–[28].
[23] At [29].
[24] At [28].
For F, Mr Dutch submits the sentence was manifestly excessive by adopting
the guideline judgment’s bands “as prescriptive”, and “not address[ing] offending by
youths specifically”, which resulted in “less agency” on F’s part. Mr Dutch argues his
sentence “logically” should not be affected by delay in being charged. Had F been
dealt with in the Youth Court—given application of the Oranga Tamariki Act 1989 and
considerations arising from international conventions regarding the rights of young
people, and noting a comparable decision in the Youth Court—Mr Dutch contends an
order of supervision with residence likely would have been made.
[10] Mr Dutch also argues the Judge erred in relying on Solicitor-General v Rawat,[25] which related to three factually distinct rapes by an adult, one committed when aged 18 years and the others aged 19 years. Contending for a 50 per cent
discount for F’s youth—from a five-year starting point, to be arrived at by stepping
outside R v AM’s bands—Mr Dutch asserts the Judge also erred in declining to give a
discount for good character (but allows such could be a component of the 50 per cent
discount).
[25] Solicitor-General v Rawat, above n 20.
For the Crown, Ms Wynne responds that F was properly sentenced as an adult
in terms of the Sentencing Act 2002, noting youth justice principles would have ceased
to apply on any transfer from the Youth Court to the District Court for sentencing. In
any event, “age is not a factor that should be taken into account when setting an
appropriate starting point for serious sexual offending”,[26] and there was nothing so
“unusual” about F’s offending to permit a starting point outside of R v AM’s bands.[27]
There being “three culpability factors present to a moderate degree”, she submitted
the Judge appropriately applied band 2 for his starting point.
[26] Quoting Liddington v R [2024] NZCA 457 at [57], referring also to B (CA343/2016) v R [2016]
[27] Referring to R v AM (CA27/2009), above n 10, at [83].
Ms Wynne also argues the Judge’s discount for F’s youth was “towards the
upper end of what was available”, and appropriately tempered to reflect the absence
of “other characteristics which tend to reduce culpability”. Discounts at the upper end
of 40 per cent were explicable by case-specific circumstances not present or
substituted here. Neither, she submits, did the Judge err in declining F any discount
for good character, as his multiple offences and continued denial reduce his prospects
of rehabilitation (which good character otherwise presumes may be achieved).
Ms Wynne supports the Judge’s decision as “well within … range” and, with
regard for the aggravating factors found by the Judge, not manifestly excessive but
reflected the overall criminality of F’s offending.
Approach on appeal
[14] We must allow F’s appeal only if satisfied there is both an error in the sentence, and a different sentence should be imposed.[28] In any other case, we must dismiss the appeal.[29] The measure of error is the sentence must be “manifestly excessive”, a
principle “well-engrained” in the approach to sentencing appeals.[30] We will not
intervene where the sentence is within a range properly justified by accepted
sentencing principles.[31] Whether the sentence is manifestly excessive is to be assessed
in terms of the sentence given; the process by which it is reached rarely will be
decisive.[32]
Discussion
Application of R v AM bands to young offenders
[28] Criminal Procedure Act, s 250(2).
[29] Section 250(3).
[30] Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].
[31] At [36].
[32] Ripia v R [2011] NZCA 101 at [15].
Mr Dutch seizes on this Court’s explanation in Liddington v R—“[t]he starting
point assumes an adult offender was found guilty following a defended trial”[33]—as
affording opportunity to argue for a different starting point for a young offender. He
draws support from this Court’s recognition in R v AM, also cited in Liddington, that
“there may be cases ‘so unusual that they will require a starting point outside the
guideline (that is, below the bottom of band one)’”.[34]
[33] Liddington v R, above n 26, at [48].
[34] At [55] quoting R v AM (CA27/2009), above n 10, at [83].
However, as this Court immediately went on to say in Liddington “[i]t is not
necessary nor appropriate … to create a special subcategory for young offenders
within the R v AM framework”.[35] Rather, by reference to “an adult offender”, this
Court was referring to the longstanding orthodoxy that a starting point is settled by
reference to “the sentence considered appropriate for the particular offending (the
combination of features) for an adult offender after a defended trial”.[36]
[35] Liddington v R, above n 26, at [56].
[36] R v Mako [2000] 2 NZLR 170 (CA) at [34].
That is to say, as was said in Liddington, a starting point is established on the
basis of “an objective assessment of the offender’s act(s) or omission(s) … explicitly
focusing on the facts of the offending and ‘excluding mitigating and aggravating
features relating to the offender’”.[37] This Court continued:[38]
[37] Liddington v R, above n 26, at [48], citing R v Taueki [2005] 3 NZLR 372 at [8].
[38] Liddington v R, above n 26, at [57].
(a) As we have explained, age is not a factor that should be taken into account when setting an appropriate starting point for serious sexual offending.
(b) Age is, however, a mandatory factor that is taken into account in stage two of the sentencing process. (c) A flexible approach to the second stage of the sentencing process provides ample opportunity to achieve justice in individual cases. At the same time, consistency in sentencing can be achieved by ensuring
the first step in the sentencing process focuses upon the seriousness
and culpability of the offending, including an objective assessment of
the act(s) or omission(s) of the offence.
We adopt that approach exactly to achieve such consistency in sentencing.
We accept Ms Wynne’s submission that the starting point for F’s offending
excludes consideration of his age at the time of the offending, the facts of the offending
disclose no factor requiring a starting point outside R v AM’s guideline and band 2 of
R v AM was engaged by the culpability factors identified by the Judge.
We have no reason to differ from the Judge’s selection of an eight-year starting
point for F’s offending. His Honour deliberately selected that starting point partly by
reference to offending justifying a nine-year starting point.[39] In Solicitor-General v
Rawat, it was noted that “[o]verall, there were two or three main aggravating factors
(vulnerability, scale and victim harm) present to a moderate degree”,[40] in offending
constituting “three separate rapes and three indecencies over a nine-month period” of
a 12-year-old victim by a 19-year-old offender.[41] Any material differences with at
least the same aggravating factors present to a moderate degree are accommodated by
the Judge’s lower starting point. We observe, given an offender’s age is not material
to the starting point, the other differences all point to F’s more serious offending. The
Judge’s starting point thus may be thought generous.
[39] Solicitor-General v Rawat, above n 20, at [35]. In that case the Court upheld the eight-year starting
[40] At [35].
[41] At [29].
“[P]unishment is premised on offender agency”, which may be affected by an
offender’s age,[42] and stands to be addressed by reference to its “contribution” (if any)
to the offending.[43] F’s age is a mandatory mitigating factor because his youth is
relevant to his sentencing—if leading to a “reduction in culpability … as compared to
adults”.[44] This is because “age-related neurological differences” of those younger than
25 years old may render such young people “more impulsive than adults”.[45] They may
also be more affected by imprisonment, and “[y]oung people have greater capacity for
rehabilitation, particularly given that the character of a juvenile is not as well formed
as that of an adult”.[46]
[42] Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [91].
[43] At [107].
[44] Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [81].
[45] At [77(a)].
[46] At [77(c)]. See also Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405 at [86].
There is no dispute F’s youth was contributory here. His largely opportunistic
offending, extending to his threats to disclose his offending as if at the victim’s
bidding, plainly reflected his reduced higher-order executive functioning in impulse
control and risk assessment. Youth can be a “highly significant mitigating factor”,
leading to discounts of 30 – 50 per cent for “[t]eenagers aged between 14–16 years who
have committed serious sexual offences”, albeit “there is no fixed outer percentage”.[47]
[47] Rolleston v R (No 2) [2018] NZCA 611, [2019] NZAR 79 at [35], referring to Martin v R [2015]
But F’s denial of the offending even as an adult means his rehabilitative
potential is more muted, requiring intervention and support.[48] His continued lack of
insight and accountability no longer can be taken as “indicative of … immaturity”.[49]
The duration and scale of his offending, together with his threats to the victim and his
subsequent offending, exclude the prospect of any discount for good character. The
Judge’s 30 per cent discount was within a range of discounts available to him, and any
sternness in its choice was counterbalanced by the relative generosity of his starting
point.
[48] Similarly, see Edwards v R [2025] NZCA 288 at [15].
[49] Rolleston v R (No 2), above n 47, at [36].
The sentence imposed by the Judge is not manifestly excessive. The Judge did
| not err. | |
| Result | |
| [24] | The appeal is dismissed. |
| Solicitors: |
Te Tari Ture o Te Karauna | Crown Law Office, Wellington for Respondent
| Judgment: | 4 August 2025 at 10.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Jagose J)
F (CA126/2025) v R [2025] NZCA 385 [4 August 2025]
judgment, despite it not being suppressed, because identifying the appellant by name would risk
breaching the victim’s automatic name suppression under s 203 of the Criminal Procedure
Act 2011: see H v R [2019] NZSC 69, [2019] 1 NZLR 675 at [54] – [58]. For this reason we have
omitted citation to the judgment under appeal and redacted some of its content. F’s name can be
published if publication does not breach s 203.
20 years’ imprisonment, the “general rule” in s 18(2) of the Sentencing Act 2002—“No court may
impose a sentence of imprisonment on the offender in respect of the offence”, applicable to
offenders under 18 years of age at the time of the commission of the offence—does not apply to
F: see s 18(3)(a).
[2022] NZCA 442; and Solicitor-General v Meyer [2022] NZHC 2692 at [105].
NZCA 483; and R v Alletson [2009] NZCA 205.
point but noted that a nine-year starting point “would have been appropriate” and that eight years
was “lenient” and “on the cusp of being outside the available range”.
NZCA 533; Lennon v R [2012] NZCA 551; Johnson v R [2014] NZCA 527; and P (CA262/2013)
v R [2013] NZCA 543.
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