Jammu v The King

[2024] NZHC 2332

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-115

[2024] NZHC 2332

BETWEEN

DILPREET JAMMU

Appellant

AND

THE KING

Respondent

Hearing:

23 July 2024 and 15 August 2024

Appearances:

S C Kim for Appellant on 23 July 2024, E Huda for Appellant on 15 August 2024

A L Hollingworth for Respondent

Judgment:

20 August 2024

JUDGMENT OF EATON J

(appeal against sentence)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

JAMMU v R [2024] NZHC 2332 [20 August 2024]

Introduction

[1]    Dilpreet Jammu pleaded  guilty to a charge of  sexual violation by rape.1  On  8 April 2024 he was sentenced by Judge Crosbie to two years and three months’ imprisonment.2 Mr Jammu appeals his sentence. He says it was manifestly excessive.

The facts

[2]    At the time of the offence, the victim was 19 and Mr Jammu was 27. They had met in November 2021 and began a relationship in February 2022. The relationship was intimate. On 10 May 2022, Mr Jammu texted the victim asking if she wanted to meet up with him. She agreed and drove to his address. Mr Jammu got into the front passenger seat of the victim’s car and she drove two minutes away and parked on the side of the road. Mr Jammu suggested that they should have sex. The victim agreed. I adopt the Judge’s summary of what then happened:

[11]  She climbed into the passenger seat on top of him facing him. He pulled his pants and underwear down to his knees, she did similar. As soon as he put his penis inside her vagina, she told him she was in pain and asked him to stop. Again, she told him that it hurt. He replied: “You’ll be fine” and continued having sexual intercourse stopping 30 to 60 seconds later with full penetration and intercourse. Then at about 1.10 pm the next day he texted her stating, in an abbreviated form, but it is accepted these are the words: “Sorry about last night, I feel so bad after”. She replied: “Why?” He replied: “Cos you was in pain and I forced you”.

Victim impact statement

[3]    The victim has suffered significantly. She feels as though she has lost herself and questions her worthiness. She says the assault has changed how she views relationships, other men, sex, and what trusting someone looks like. The victim fell pregnant and struggled with the decision whether to keep the baby. The decision to terminate the pregnancy adversely impacted her mental health and contributed to the trauma she experienced.3 Her victim impact statement outlines the financial consequences of the offending including lost income.

1      Crimes Act 1961, s 128(1)(a). Maximum penalty: 20 years’ imprisonment.

2      R v Jammu [2024] NZDC 7605.

3      The Judge did not refer to the pregnancy and termination. Mr Huda says there was an issue as to the date of the pregnancy that was not resolved.

Sentencing decision

[4]    Mr Jammu had sought a sentence indication as to whether, following a guilty plea, a non-custodial sentence was likely. On 16 January 2024 the Judge gave an indication recording the Crown submission that an appropriate starting point was just below four years’ imprisonment. On behalf of Mr Jammu, a starting point of three and a half to four years was proposed. The Judge indicated a starting point of three years and nine months’ imprisonment. Allowances for guilty plea, rehabilitation and emotional harm reparation were indicated. A guilty plea followed.

[5]    In sentencing Mr Jammu, the Judge referred to R v AM4 and to a starting point for an uncontested rape of six years’ imprisonment. The Judge observed that the Court of Appeal in Crump v R5 described the AM starting points as flexible and to be assessed on a case-by-case basis. With reference to the starting points proposed by counsel, the Judge confirmed the starting point as indicated, describing it as slightly below that advanced by the Crown, but slightly higher than that advanced by the defence. Understandably in those circumstances the Judge said he did not propose to expand any further on the case law.

[6]    The Judge allowed Mr Jammu a 20 per cent deduction for his guilty plea. He allowed a further five per cent in recognition of the impact of a sentence of imprisonment on Mr Jammu including his likely deportation and his parents’ likely response to his offending. A 10 per cent deduction was allowed for Mr Jammu’s previous good character and rehabilitative prospects, and five per cent allowed for an offer to pay emotional harm reparation of $7,500.

[7]    The Judge considered affidavits filed by both Mr Jammu and his brother-in-law regarding Indian culture, and in particular the absence of sex education as part of the Indian school curriculum. The Judge described that information as interesting but not persuasive given Mr Jammu’s acceptance that, notwithstanding his lack of sexual education, he acknowledged he fully understood that what he did was totally wrong.

4      R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

5      Crump v R [2020] NZCA 287.

[8]    Applying a total deduction of 40 per cent, the Judge imposed a sentence of two years and three months’ imprisonment and made an order that Mr Jammu pay

$7,500 emotional harm reparation.

Personal background

[9]    Mr Jammu is an Indian national from a farming family in a village in the state of Haryana in Northern India. He is the youngest of three siblings. He has two older sisters. One remains in India. The other came to live in New Zealand in 2016.

[10]   Mr Jammu came to New Zealand on a student visa in 2018 to study for a post-graduate diploma in hospitality management at Ara. He has only made one return trip to India since his arrival in New Zealand. He was granted New Zealand residency in January 2022.

[11]   In New Zealand Mr Jammu has lived with his sister and her husband. After graduating with a post-graduate diploma in 2019, Mr Jammu worked for nearly    two years as a bartender at a new Christchurch hotel. That employment ended when the hotel became a managed isolation and quarantine facility during covid. He then took on a role within the hotel in food delivery until 2021. He subsequently worked at Subway until early 2022. When that employment ended, he began working in an Indian restaurant before becoming a taxi driver. The latter career was ended when he was arrested, and his “P” (passenger) endorsement was cancelled in March 2023.

[12]   Mr Jammu’s brother-in-law filed an affidavit in support of Mr Jammu’s sentencing. The brother-in-law was a high school teacher in India for eight years. His affidavit primarily addresses sexual education in India. He highlights the absence of sex education as forming part of an Indian school curriculum, those topics are considered to be shameful and taboo. The Judge’s finding as to the relevance of that evidence is not challenged on appeal.

[13]   In his affidavit filed in the District Court, Mr Jammu expressed his remorse and his acceptance of responsibility. He outlined the consequences of his offending as including the loss of the privilege in working in New Zealand and providing for his

parents, and his consequential reliance on his sister and brother-in-law in New Zealand and his older sister who lives in New Delhi. He relevantly deposes:

Before I pleaded guilty, I disclosed my criminal proceeding to my then fiancée [fiancée], whom my parents had arranged for me to marry. We got engaged on 8 February 2023 in India. To meet with my and [fiancée’s] family for the engagement as per custom, I left for India after my offending in early December 2022 and returned to New Zealand in March 2023. The disclosure was necessary given we planned to marry in India in November 2023, which was no longer feasible given my conditions of bail.

Understandably, upon informing [fiancée] and her family, they broke off the engagement. They also informed my parents in India of my criminal offending, who promptly disowned me in response. This Court would be aware that on 7 June 2023, Cull J ordered the suppression of my name and particulars largely due to the extreme hardship I would likely face if my parents discovered that I was being prosecuted for sexual violation by rape. In short, the likely consequences of publication amounting to extreme hardship was the likely prospect of being disowned by my parents, which would have life-long flow-on consequences on my marriage prospects and ability to obtain/retain gainful employment due to the debilitating stigma of being disowned in India. Annexed and marked with the letter “A” is a copy of my affidavit in support of my application for suppression and annexed and marked with the letter “B” is a copy of the Indian attorney Koshima Arora’s formal statement explaining the concept of disownment in India and its legal significance.

Due to my residency status, I will be deported to India once I finish serving my sentence. Without the direct assistance and support of [brother-in-law] and [sister], reintegrating into the Indian community will prove very difficult for me given I am now disowned. The consequences that I have described in my previous affidavit will become a reality for me in India.

As a result of my disownment, I am unable to return to my hometown of Sadhanwas where my parents still reside. On top of this, I am not confident in my ability to withstand the social stigma of being disowned. Family is a topic that is often brought up in conversation and knowing one’s family generally is unavoidable. To complicate things further, knowledge of an individual’s family is also important in determining their standing in their respective caste. If it is known that I do not have contact with my parents as  I have been disowned, I will become an outcast and will, at the very least, be pushed down to the lowest rank within my caste.

[14]   Prior to entering his guilty plea, Mr Jammu successfully appealed the refusal to continue an interim order for name suppression. In support of that appeal, he had filed a report from an Indian-domiciled lawyer as to the practice and consequence within India of a family disowning a child. Cull J allowed Mr Jammu’s appeal on the

grounds that the consequences of publication were likely give rise to extreme hardship to Mr Jammu.6

[15]   In explaining his offending, he told the probation officer “I couldn’t stop myself in that time” referring to the time between the complainant asking him to stop because she was experiencing pain and when he ejaculated. He confirmed that he had texted the complainant to apologise and had arranged to meet her the following day to apologise in person.

Principles on appeal

[16]   This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.7 Otherwise, the Court must dismiss the appeal.8

[17]   The sentence must be manifestly excessive before the appeal Court may substitute its own views as to the appropriate sentence. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.9 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.10

Procedural history

[18]   This appeal was initially heard on 23 July 2024. The grounds of appeal advanced by appellate counsel focussed almost exclusively on the alleged failure of the sentencing judge to adopt, what counsel described as “the contemporary approach” to sentencing.11

6      J v Police [2023] NZHC 1400.

7      Criminal Procedure Act 2011, s 250(2).

8      Section 250(3).

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].

10     Ripia v R [2011] NZCA 101 at [15].

11 That submission was founded on the view expressed by Goddard J in  Martin v R [2022] NZCA  285 at [111], a case dealing with the importation of methamphetamine, that if the application of the Zhang guidelines led to a lengthy term of imprisonment, it was open to the sentencing judge to allow a further adjustment to the sentence when undertaking the final sentencing step of standing back and assessing the appropriateness of that sentence.

[19]   The Judge had given Mr Jammu a sentence indication adopting a starting point sentence of imprisonment that meant a sentence of home detention was unlikely. That indication was accepted by Mr Jammu. At sentencing, defence counsel had not submitted a sentence of home detention might be imposed by application of a “contemporary approach” notwithstanding the Judge having arrived at an end sentence of 27 months imprisonment. In those circumstances, criticism of the Judge was unjustified.

[20]   At the hearing on 23 July, and although not raised by the appellant, I invited counsel to address the starting point taken in the District Court having regard to what I considered to be the broadly similar facts of Crump (a withdrawn consent case) and the observation of the Court of Appeal that for Mr Crump as a first-time offender, a non-custodial sentence was demonstrably appropriate, and a sentence of inevitable imprisonment demonstrably manifestly excessive.12 Neither counsel had appeared in the lower Court and were not in a position to address the starting point.

[21]   Counsel then appearing for Mr Jammu applied to adjourn the appeal to file amended grounds of appeal and further submissions. Ms Hollingworth for the Crown sought an opportunity to file further submissions as to the starting point and to address the other issues raised, namely the ‘contemporary approach’ to sentencing and the credit allowed for personal/cultural consequences.

[22]   The appeal was adjourned, and further submissions filed. I heard further argument at a resumed hearing on 15 August 2024.

Appellant submissions

[23]   Mr Huda submits the end sentence was manifestly excessive. He submits the starting point was too high and that a greater deduction to reflect the emotional harm reparation, remorse and the personal consequences for Mr Jammu is merited.

[24]   By reference to Crump, he submits the appropriate starting point for Mr Jammu is no more than two years and five months’ imprisonment. He accepts that in the

12     Crump v R, above n 3, at [109].

District Court the defence failed to properly engage as to the appropriate starting point, an exercise said to be challenging because of the absence of relevant authority.

[25]   As for the credits allowed, Mr Huda takes issue with the Judge describing the emotional harm reparation as being modest to small. He submits an assessment of the appropriate credit for emotional harm reparation must reflect a defendant’s means. He submits that for Mr Jammu, having been left unemployed as a result of his offending, a payment of $7,500 from his life savings was significant and worthy of more credit than the five per cent allowed. He highlights the draconian consequences of the offending for Mr Jammu, being his deportation from New Zealand and disownment by his family and submits the five per cent credit allowed for this factor was not adequate.

[26]   Mr Huda submits that, either with an adjusted starting point or an increase in the deductions allowed the end sentence ought to have been one of less than two years’ imprisonment and that the sentence should be commuted to one of home detention. He refers to the observations of the Court of Appeal in Crump as regards the appropriateness of a non-custodial sentence in a factually similar case involving a first-time offender expressing genuine remorse.

Respondent’s submissions

[27]   Ms Hollingworth submits the starting point was within range. She acknowledges that an unusual feature of this offending was that the intercourse was initially consensual but continued after consent was withdrawn. She submits that unusual factor informed the Crown submission that a starting point below band one of AM was justified.

[28]   Ms Hollingworth closely examined the known facts of Crump highlighting that the Court of Appeal adopted Mr Crump’s version of the facts as the basis for sentencing. That version of the facts was significantly at odds with the version given by the victim at Mr Crump’s trial.

[29]   Ms Hollingworth contends there are six factors that point to Mr Jammu’s offending being more serious than Mr Crump’s. First, she says there was less prior

consensual activity. Mr Jammu and his victim seemingly engaged in no sexual activity prior to commencing the act of intercourse. Secondly, Mr Crump was, at least for a short period, confused as to the victim’s withdrawal of consent. Mr Jammu did not claim any mistaken belief in consent or confusion. He told the pre-sentence report writer “I couldn’t stop myself in that time”. Thirdly, Mr Jammu continued the act until completion in the form of ejaculation. Fourthly, Mr Jammu’s victim was experiencing pain. Ms Hollingworth submits Mr Jammu’s persistence and disregard for the victim’s pain is informative. Fifthly, there was a breach of trust given the nature of their ongoing relationship akin to Mr Crump and his victim. Finally, it is submitted there was  more  significant  harm  to  Mr  Jammu’s  victim.  Ms  Hollingworth  submits Mr Jammu’s offending warrants a significantly higher starting point than that adopted in Crump, one in the region of four years’ imprisonment. More generally, she submits Crump is not a guideline judgment for cases involving rape and withdrawn consent, but acknowledges it is a relevant comparator.

[30]   As regards the credits for mitigating factors, Ms Hollingworth submits a credit for likely deportation was not available and that the five per cent permitted for the personal hardship of Mr Jammu being disowned by his parents was sufficient. She submits the credit for the emotional harm reparation was within range.

[31]   Overall, Ms Hollingworth submits the end sentence was not manifestly excessive and the appeal should be dismissed.

Discussion

[32]   It is fundamental that an individual has the right to choose the sexual activity with which they engage with a sexual partner and that a sexual partner must respect their wishes. A sentencing Court must assess the degree of seriousness of the sexual violation and make what was described in AM as the “often invidious comparative assessments in relation to events which on any view are unacceptable and often disturbing”.13 In this context it is important to recognise, as was observed by Kós P  in Crump:14

13     R v AM at [78].

14     Crump v R [2020] NZCA 287 at [91].

All acts of rape involve the unlawful denial of the victim's autonomy, and the violation of her person. Every rape case is serious. To compare cases of rape, and to contrast degrees of seriousness, is in those terms invidious. But it cannot be the case that there is simply one penalty for rape. Invidious as it may be, comparison is required. Some cases will command a very stern sentence; others may justify a more merciful response.

[33]   Ahead of the then proposed sentencing council in New Zealand, a Sentencing Establishment Unit (SEU) was established and operated under the umbrella of the Law Commission. The SEU prepared a set of draft sentencing guidelines. The SEU draft guidelines adopted the approach of the Court of Appeal in R v A,15 suggesting that in limited circumstances the seriousness of sexual offending may decrease where the offender and an adult victim have engaged in consensual sexual activity just before the offending. It was indicated that the relevance of this factor would depend on the circumstances “including the type of earlier consensual activity, the similarity to what compromised the sexual violation, and the timing”.16 That factor was included as a relevant culpability assessment in AM under the umbrella of “mistaken belief in consent”.17

[34]   The key factual matters that inform the assessment of Mr Jammu’s culpability are that the victim and Mr Jammu had spoken and agreed to engage in sexual intercourse; the victim had climbed on top of the appellant as he sat in the passenger seat of her vehicle. The couple then very briefly engaged in consensual sexual intercourse. Consent was withdrawn when the victim indicated she was experiencing pain. Rather than stop or address the victim’s discomfort, the appellant continued penetrating the victim for at least 30 seconds at which he ejaculated. I accept that the non-consensual activity was the same act as the prior consensual activity and occurred within seconds of the consensual activity.

Appropriate starting point

[35]   It is no criticism of the sentencing Judge that little analysis was undertaken as to the appropriate starting point. Counsel had proposed similar starting points and the Judge settled on the mid-range point of three years and nine months’ imprisonment.

15     R v A [1994] 2 NZLR 129 (CA).

16     R v AM at [55].

17     R v AM at [59].

On appeal, and following further reflection by appellate counsel, that is said to be too high.

[36]   The guideline judgment for sentencing for sexual violation is R v AM.18 There, the Court of Appeal outlined bands which set out ranges of overlapping starting points. The Court said band one (starting point six to eight years) will be appropriate for offending at the lower end of the spectrum; that is, offending where the aggravating features are either not present or present to a limited extent.19 The Court acknowledged there will also be cases which are so unusual that they will require a starting point outside of the guideline (i.e., below the bottom of band one).20 The Crown conceded and the Judge accepted that Mr Jammu’s  offending fell below  band one.

[37]   The closest comparator case identified by counsel is Crump. Given the unusualness of Mr Jammu’s offending, it is helpful to examine the facts of that case, and the other authorities referred to by the Court of Appeal.

[38]   Mr Crump was convicted at a jury trial of raping his former partner. He was found not guilty of five charges of domestic violence. He had pleaded guilty at the outset of trial to two charges of domestic violence and a charge of endangering transport (domestic violence offending). He appealed both conviction and sentence.

[39]   The complainant’s evidence was that  after  she  initiated  sexual  activity,  Mr Crump had forced himself on her and that at no point did she consent to penetrative sex. In his police statement and in evidence at trial, Mr Crump confirmed the initial sexual activity was initiated by the complainant. He maintained the complainant did initially consent to the act of sexual intercourse and that it was during that act that she indicated she wanted him to stop. He acknowledged she had said no repeatedly before he stopped.

18     R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

19 At [93].

20 At [83].

[40]   A majority of the Court found that Mr Crump’s statement and evidence provided a reasonable foundation for the guilty verdict. Relevantly for sentencing, the Court summarised Mr Crump’s evidence:21

(a)he confirmed that “halfway through” having sex Ms B said “oh no, I don’t want this no more”;

(b)a short discussion ensued in which he expressed surprise at this turn of events;

(c)he continued to have sex with Ms B after that;

(d)“she said no again”;

(e)he did not stop because “it wasn’t registering at the time that she, she didn’t want this because this was new to me. She always, we always had sex on occasions”;

(f)“she continued to say no about four times”; and

(g)“not long after that it finished and we stopped”.

[41]   In cross-examination Mr Crump said he felt entitled to continue having sex with Ms B because she initiated sexual activity with him.

[42]   The sentencing Judge had taken a starting point of three years and 10 months’ imprisonment, treating the offending as falling below band one in AM. That sentence was uplifted by five months for the domestic violence offending. Discounts equating to approximately 12 per cent for previous good character, 12 per cent for remorse and 12 per cent for mental health issues were allowed. The sentence under appeal was one of two years and nine months’ imprisonment.

21     Crump, above n 3, at [84].

[43]   After referring to AM and other comparator cases (discussed below), the Court of Appeal unanimously concluded the starting point for the rape was too high. The Court held:22

Standing back, as we must do, our assessment remains that, with discounts for personal factors, including that Mr Crump was a first-time offender, a non-custodial sentence is demonstrably appropriate, and a sentence of inevitable imprisonment demonstrably manifestly excessive. The stigma of conviction for rape is in itself a profound penalty, which Mr Crump will have to bear for the whole of his life. The appropriate starting point for this offending was two years and three months' imprisonment, a sentence likely to qualify a genuinely remorseful offender for a non-custodial sentence.

(footnote omitted)

[44]   The uplift of five months imposed for the domestic violence offending was confirmed. The Court also confirmed the credit equating to about 12 per cent for previous good character. Mr Crump was aged 24 as at the date of offending and had no previous convictions. The further deduction equating to 12 per cent was allowed for remorse and insight  assessed  to  be  both  real  and  genuine  was  confirmed.  Mr Crump suffered a post-traumatic stress disorder as a result of a beating some years earlier, and moderately severe depression. A discrete discount was allowed for that factor. An end sentence of 18 months’ imprisonment (for all offending) was imposed. The Court of Appeal did not address commuting that sentence to one of home detention, no doubt because Mr Crump had served the reduced sentence.

[45]   One of the cases referred to by the Court in Crump was the English decision of R v Greaves.23 The Court of Appeal in AM had referred to Greaves as an example of offending that fell below band one. In Greaves, a 34-year-old appellant had been convicted of raping a 17-year-old victim. They were not in a relationship but had engaged in consensual sexual activity short of intercourse before the appellant began to penetrate the victim. She said no and told him to stop but he continued to penetrate the victim. Mr Greaves was sentenced on the basis the intercourse was initially consensual but that he had continued that act after he knew the victim had changed her mind. He had originally been sentenced to 42 months’ imprisonment. The English Court of Appeal considered the sentencing Judge placed inappropriate weight on the

22 At [109].

23     R v Greaves [1999] 1 Cr App R (S) 319 (CA).

age disparity between the parties. Having regard to the appellant’s lack of previous convictions for sexual offending an end sentence of 18 months’ imprisonment was imposed on appeal.

[46]   The Greaves decision did not indicate a starting point or quantify any discounts. That led the Court in Crump to consider what starting point might have been applied. The Court considered that on the face of the judgment Mr Greaves called into aid broadly similar mitigating personal circumstances to those of Mr Crump in addition to a discount for a guilty plea. The Court considered that if discounts of 40 to 50 per cent had been applied then the starting point for Mr Greaves would have been around 30 to 36 months’ imprisonment.

[47]   The Court in Crump also considered two Australian appellate decisions. First, R v Hennessy24 where a 17-year-old appellant and 15-year-old complainant were in a relationship. During consensual sexual activity involving digital penetration, the complainant told the appellant to stop as she was experiencing pain. The appellant then commenced intercourse with the complainant. She again told him it hurt and to stop. He told her to relax and continued the act of intercourse. She tried to push him away and after several minutes he ceased having intercourse with her. A sentence of three years’ imprisonment, suspended for nine months, was upheld on appeal by the Supreme Court of Queensland, but with the period of suspension reduced to 11 weeks. The reduction in the period of suspension reflected the ages of the appellant and the complainant. Second, in McCartney v R25 the appellant had sexual intercourse with the victim without her consent, knowing that she was not consenting. The penetration was described as relatively brief. It was not a case of withdrawn consent. There was no apparent use of force beyond that inherent in the act of penetration. A starting point of  three  years’  imprisonment  was  taken  but  reduced   to   reflect   a   guilty   plea. Mr McCartney was sentenced to two years and six months’ imprisonment. That sentence was upheld by the New South Wales Court of Appeal, describing the offending as “within the lowest echelon of the range of available sentence for this serious offence”.26

24     R v Hennessey [2002] QCA 523.

25     McCartney v R [2009] NSWCCA 244.

26 At [25].

[48]   Ms Hollingworth referred to R v Maaka.27 Mr Maaka was found guilty at trial on one charge of sexual violation by unlawful sexual connection (oral sex), four charges of sexual conduct with a young person, and one charge of sexual conduct with a young person. The offender, when aged 19, met the then 13-year-old victim late one night in Wellington. He walked her to a secluded entranceway, grabbed her bottom and attempted to remove her trousers. They then commenced a sexual relationship that continued until very shortly after the victim’s 14th birthday. During the 13-month period of their relationship Mr Maaka was in custody for about six months. He was imprisoned again from April 2019 until early January 2021. Upon his release he recommenced a sexual relationship with the victim. Towards the end of that relationship, he told the victim that he wanted to “fuck her face”. She was unsure what he meant. He inserted his penis into her mouth. She felt like she was choking. The trial Judge found that the victim had consented at first, or that Mr Maaka reasonably believed she was consenting, but that she withdrew her consent over the course of the act. She told Mr Maaka to stop but he proceeded to keep his penis in her mouth, telling her to “do it properly”. As a consequence, the offending impacted the victim’s ability to trust people and to maintain relationships. She struggled with anxiety and was scared enough to seek a protection order against the offender. McQueen J found two aggravating factors to be present to a low degree, namely the degree of violation experienced by the victim and her vulnerability. The Judge considered both Crump and Greaves and adopted a starting point of four and a half years’ imprisonment for the lead charge of sexual violation by unlawful sexual connection (oral sex), describing that starting point as below rape, band one, in AM and higher to that assessed in Crump. The overall starting point for the offending was five and a half years’ imprisonment.

[49]   As can be seen, the few comparator cases involving sexual violation by rape and withdrawn consent have led to starting points between two years and three months, and three years’ imprisonment. I consider the absence of an express agreement to sexual activity coupled with the age of the victim and the demeaning words and conduct associated with the offending, distinguishes Maaka.

27     R v Maaka [2022] NZHC 3240.

[50]   I accept that Crump is not a guideline judgment for cases of sexual violation by rape when consent is withdrawn, but given the acknowledged unusualness of this offending and the very few cases that have undertaken the culpability assessment in such cases, I consider Crump and the cases referred to must guide the assessment of an appropriate starting point for Mr Jammu.

[51]   Turning to the features of Mr Jammu’s offending said to differentiate the offending from that of Mr Crump, Ms Hollingworth is right to highlight that there was very little consensual sexual activity between Mr Jammu and his victim immediately preceding the rape. Prior to the act of consensual sexual intercourse there was an oral agreement to have sex and the victim moved to the passenger seat of the vehicle, sitting on top of Mr Jammu. In Crump the victim described herself as lying on her stomach with Mr Crump on top of her before consent was withdrawn. I do not think the preceding activity elevates the appellant’s culpability.

[52]   I agree that Mr Jammu’s offending is elevated because the complainant withdrew consent very shortly after consensual sexual intercourse had commenced. Ms Hollingworth submits Mr Jammu’s offending is also more serious because he was not confused as to the withdrawal of consent. The victim says she told Mr Jammu twice to stop. Mr Crump acknowledged being told four times to stop. I doubt that would justify a distinction between the two cases.

[53]   Ms Hollingworth submits Mr Jammu made a deliberate decision to complete intercourse to the point of  ejaculation.  That  is  estimated  to  have  taken  at  least 30 seconds. I agree that is a factor that distinguishes the offending from Crump. It is not clear how long Mr Crump sexually violated his victim. The period was described as “brief” and “not long after” but what is significant is that Mr Jammu made a conscious decision to continue intercourse knowing consent had been withdrawn solely to satisfy himself. Also elevating his culpability is that Mr Jammu knew his victim was experiencing pain.

[54]   I agree his offending involved a breach of trust and a degree of victim vulnerability; however I consider that factor to be present at a lower level than in

Crump, recognising that in Crump there was associated domestic violence and a toxic relationship.

[55]   It is difficult, and I think generally unhelpful, to try to distinguish the two cases by reference to the degree of harm to the victim. The victim in Crump was described as being in a toxic relationship where she suffered domestic violence. I acknowledge the mental and physical trauma suffered by Mr Jammu’s victim as a consequence of her pregnancy and decision to terminate. However, for the reasons discussed during argument, that need not be addressed any further. I accept that Mr Jammu’s victim has suffered enduring harm.

[56]   Having undertaken what was described in Berkland v R28 as an intensely individualised factual evaluation, I consider Mr Jammu’s offending to be more culpable than that of Mr Crump. I assess his offending to broadly fall within the culpability range applied in Greaves and Hennessy where starting points of around three years’ imprisonment were adopted.

[57]   I am satisfied that Mr Jammu’s offending is properly described as falling towards the lowest end of the spectrum. I am satisfied that the starting point adopted by the Judge was too high. Standing back and assessing Mr Jammu’s culpability by reference to the aggravating and mitigating factors identified in AM and the comparative cases, I assess the appropriate starting point for Mr Jammu’s offending to be no more than three years’ imprisonment.

Personal mitigating factors

[58]   The Judge allowed a 20 per cent deduction for the guilty plea. That is not challenged on appeal. Mr Huda does challenge the deductions allowed for the emotional harm reparation and for the personal consequence of being disowned by family.

28     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [22].

Emotional harm reparation / remorse

[59]   Mr Huda contends the allowance of five per cent for the emotional harm reparation was too low. He says the Judge was wrong to describe the $7,500 reparation as being “modest to small”. Mr Huda referred to R v Johnson29 where the appellant received a 25 per cent discount for remorse and a lump sum payment of $10,000. Notably, the offending in Johnson was markedly worse than the present case, and unlike Mr Jammu, Mr Johnson was “well-off” with “significant assets”.30

[60]   The cases reflect there is not and could not be a scale of deduction for emotional harm reparation commensurate with the level of reparation.31 However, as was recognised by the Court of Appeal in Kohu v R,32 genuine remorse demonstrated by an offender will typically attract discounts of between five and 15 per cent. An offer to provide emotional harm reparation might be a tangible demonstration of remorse.

[61]   Reparation is an important facet of sentencing. One of the nine statutory purposes of sentencing is to  provide  reparation  for  harm  done  by  the  offending.33 Another is to  provide  for  the  interests  of  the  victim  of  the offence.34 Further, a sentencing court has a statutory obligation to take into account any financial offer to make amends.35 The appropriate level of any deduction for reparation must reflect a defendant’s means. The Court may call for a reparation report to assess an offender’s means.36 The deduction may reflect the victim’s response.

[62]   The modest deduction allowed by the sentencing Judge reflects an assessment that the $7,500 offered “in the scheme of things in relation to an offence like this [it] is modest to small”.37 The Judge said the amount offered would not adequately

29     R v Johnson [2010] NZCA 168.

30 At [29].

31     Sherratt v R [2021] NZHC 1901; Hawkins v R [2022] NZHC 283; Rowles v R [2016] NZCA 208.

32     Kohu v R [2023] NZCA 343 at [40].

33     Sentencing Act 2002, s 7(1)(d).

34     Section 7(1)(c).

35     Section 10(1)(a).

36     Section 33(1)(d).

37     R v Jammu above n 2, at [31].

compensate the victim. As was recognised, it was not intended to. The Judge observed the $7,500 was as much as Mr Jammu could come up with.

[63]   I accept that Mr Jammu offered, and has since paid, a substantial portion of his life savings to the victim. As a consequence of his offending, he was unemployed. He was boarding with his sister and brother-in-law in Christchurch. It was not suggested that he owned any substantial assets. In those circumstances I consider the sum of

$7,500 to be significant.

[64]   The deduction of five per cent equated, on the starting point adopted by the Judge, to a sentence reduction of about two months’ imprisonment. Having regard to a defendant’s eligibility for early release, that two-month allowance might equate to as little as two and a half weeks’ time actually served. In my view a more tangible deduction was required.

[65]   An offer to provide reparation should not be considered in isolation. Rather, it should be considered alongside any other evidence that a defendant is genuinely remorseful and has taken appropriate steps to make good the harm caused by the offending. Mr Jammu’s offer to pay emotional harm reparation was appropriately considered alongside his immediate and voluntary apology, his offer to participate in restorative justice and his guilty plea. It is difficult to conceive what more Mr Jammu could have done to demonstrate his genuine remorse or to make amends.

[66]   Over and above the discount for reparation, the Judge allowed a deduction of 10 per cent to reflect Mr Jammu’s remorse and previous good character. I prefer to consider remorse and reparation together. I fix that deduction at 12.5 per cent. That  is very close to the deduction allowed for remorse to Mr Crump who did not offer emotional harm reparation.

Previous good character

[67]   I agree with the Judge that Mr Jammu was entitled to credit for his previous good character. At the age of 27 years, he had no previous convictions. He had successfully studied in New Zealand and gained employment until the offending; he appears to have been a contributing member of the community. I agree with the Judge

that a deduction was appropriate to recognise Mr Jammu’s previous good character. Assessing that factor discretely, I fix the appropriate level of discount to be

7.5 per cent. I consider that deduction to be modest having regard to the 12 per cent allowed to Mr Crump.

Personal consequences - disowning

[68]   Ms Hollingworth submits the five per cent deduction allowed by the Judge to reflect the difficulties Mr Jammu would face in prison and the consequences, including his family disowning him, was adequate. Mr Huda says this consequence is highly unusual and significant. He advanced argument that deportation is a consequence of conviction and might warrant a sentence deduction. I do not consider it necessary to address that submission. Deportation seems inevitable. It is the allowance to reflect the cultural consequence of family disownment that requires consideration.

[69]   At [13] above I have referred to Mr Jammu’s’ affidavit filed in support of his name suppression appeal. In that evidence he speaks of his fear of being disowned by his parents. Mr Jammu’s affidavit annexed a statement from a New Delhi based lawyer, Ms Koshima Arora, who confirmed the consequences of a child being disowned by family in India. Ms Arora provides, as an example of when a child might be  disowned,  an  allegation   of   sexual   offending   in   a   country   such   as   New Zealand. Ms Arora says disowning will most likely permanently sever the child’s relationship from family. The child will be removed from the parents and will find it very  difficult  to  secure  respectable  employment  and  a  prospective spouse. Ms Arora says, if disowned Mr Jammu will become a social outcast and be treated as such, both within the community in which he grew up and any new community in which he might try to settle. He would be required to explain to prospective employers, a future spouse and her family the reason why he has no family. Ms Arora says with reference to Mr Jammu’s hometown of Sadhanwas, it is a common and accepted practice for children to be disowned for reasons far less serious than alleged sexual offending.

[70]   At sentencing Mr Jammu swore a further affidavit and deposed that he had been disowned by his parents, and as a consequence referred to his plan, following his deportation, to live with his older sister in New Delhi.

[71]   In considering the deduction for personal considerations, the Judge considered it “unlikely” that Mr Jammu, on returning to India, would have the level of family support that he currently enjoys. Having reviewed the evidence, I consider that consequence to be very likely. I accept Ms Arora’s opinion as to what disownment will mean to Mr Jammu. In my view that consequence will be particularly harsh and well beyond those  ordinarily  experienced  by  a  person  convicted  of  rape  in  New Zealand. I agree with Mr Huda the personal consequences for Mr Jammu are appropriately described as significant and traumatic and, of themselves, elevate the stigma of a rape conviction to the very highest level.

[72]   I consider a deduction of 10 per cent to be appropriate in recognition of the cultural implications of Mr Jammu’s offending for his future life.

Overall assessment as to starting point and deductions

[73]   From a starting point of 36 months’ imprisonment, and applying adjusted deductions totalling 50 per cent, the end sentence is reduced to 18 months’ imprisonment. This being a short period of imprisonment, I must consider whether a sentence of home detention should be imposed as an alternative to imprisonment.

Should the short-term sentence be commuted to home detention?

[74]   Understandably the author of the provision of advice to courts (PAC) report felt constrained by the sentence indication but did recommend that if a sentence of imprisonment of less than two years was available, then considering Mr Jammu’s lack of criminal history and assessed low risk of offending, home detention was the recommended sentence. The report writer observed a home detention sentence would allow Mr Jammu to remain in a supportive family environment until a deportation decision is made. The author observed Mr Jammu was likely to struggle to cope within a prison environment and opined he would be targeted.

[75]   Ms Hollingworth points to s 128B of the Crimes Act, a provision creating a presumption of a sentence of imprisonment following a conviction for sexual violation, as an obstacle to a sentence of home detention. Section 128B relevantly provides:

128B    Sexual violation

…

(2)        A person convicted of sexual violation must be sentenced to imprisonment unless, having regard to the matters stated in subsection (3), the court thinks that the person should not be sentenced to imprisonment.

(3)The matters are—

(a)the particular circumstances of the person convicted; and

(b)the particular circumstances of the offence, including the nature of the conduct constituting it.

[76]   Because of the paucity of cases that engage culpability below band one of AM there is very little guidance as to how the presumption of imprisonment might be overcome. Mr Huda submits the Court should take guidance from the approach taken in relation to a similar presumption in the Misuse of Drugs Act 1975 (s 6(4) of that Act).

[77]In R v Hill the Court of Appeal considered s 6(4) and held:38

[38]      …in this class of case the presumption of imprisonment  created by  s 6(4) of the Misuse of Drugs Act must not be overlooked. That presumption reflects the seriousness with which Parliament views drug offending and the weight it gives to factors such as denunciation, accountability and deterrence in this context. Such factors are of particular importance in the case of methamphetamine, the use of which is currently seen as a serious social problem in New Zealand.

[39]      Cases involving the supply of methamphetamine vary greatly — from sophisticated, large-scale commercial operations undertaken by persons whose motivation is financial, to cases involving addicts who deal in a small way to friends or acquaintances essentially as a by-product of their own use and involvement in the drug sub-culture. End sentences that meet the definition of “short-term sentence” for the purpose of s 15A are only likely to be imposed in cases at the lower end of the spectrum.

38     R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.

Discussion

[78]   In R v Accused,39 the Court of Appeal observed that while imprisonment is generally necessary to denounce the crime, protect the community, and as a deterrent in the public interest, “there is ample scope within the terms of s 128B(2) to deal with each case on its merits without any Judge feeling bound by any particular tariff”.40 And although not expressly referred to, in Crump it is clear the Court was not constrained by s 128B(2).

[79]   I am satisfied the Court may exercise the discretion to depart from the presumption of imprisonment where the circumstances and nature of the offending and the offender dictate a non-custodial sentence would be the least restrictive sentence available to satisfy the purposes and principles of sentencing. I accept, using the language of Hill, that Mr Jammu’s offending falls at the “lower end of the spectrum”, and that, considered alongside the personal circumstances I have discussed, the s 128B(2) presumption can be rebutted.

[80]   The factors relevant to s 128B(2) also come into play in considering whether a sentence of home detention can meet the principles and purposes of sentencing. In considering whether to commute the sentence of imprisonment to home detention the observations of the Court of Appeal in R v Iosefa remain relevant:41

[41] The sentence of home detention introduced by the 2007 amendment indeed provides a real alternative to imprisonment. It carries with it in considerable measure, the principles of deterrence and denunciation. It is clear parliamentary policy that for short-term sentences, those of two years or less, the restriction on liberty through home detention can more appropriately be imposed by a sentence of home detention than by imprisonment. In cases of more serious offending which justify a sentence greater than two years, the sentence of home detention will not be available and in such cases in accordance with the hierarchy of sentencing in s 10(A) a sentence of imprisonment usually will be required to reflect the purposes of denunciation and deterrence.

[81]   Ultimately whether a sentence of home detention is sufficient to meet the sentencing objectives of deterrence and denunciation is an evaluative exercise. It is a

39     R v Accused [1989] 1 NZLR 643 (CA).

40     At 654.

41     R v Iosefa [2008] NZCA 453.

matter of judgment whether that sentence would provide an adequate response, having regard to the seriousness of the offending.

[82]   In Crump the Court of Appeal emphasised that guideline judgments do not preclude sentencing judges exercising discretion. The Court said the decision in AM expressly permits starting points for cases with lowered culpability falling below band one to permit a non-custodial sentence where, for example, there are discounts for an early guilty plea, genuine remorse, and cultural factors. In a similar vein, the authorities emphasise that sentencing must achieve justice in individual cases.42

[83]   There is no question Mr Jammu’s offending fell below band one of AM. This was confirmed by the starting point set by the Judge. I have assessed the offending as falling within the lower end territory as that in Crump, Greaves and Hennessy.

[84]   Given the nature of the offending, remorse, early guilty plea, and the absence of previous convictions, the pre-sentence report writer indicated Mr Jammu has a very low risk of re-offending. He does not require psychological intervention to ensure he does not offend in the future, nor is he a candidate for a departmental rehabilitative programme. I am satisfied Mr Jammu does not pose a threat to the community. The report writer recommended a sentence of home detention and expressed concerns for Mr Jammu’s wellbeing if sentenced to imprisonment. These factors support a sentence of home detention.

[85]   There is another factor particular to Mr Jammu that I consider to be significant. I have discussed the serious consequences flowing for Mr Jammu from his offending. He will forever pay the price of the shame he has brought on his family. This reflects cultural factors. Following deportation, he will return to India knowing his only available support is his older sister. From within the prison, he is unable to fully benefit from the support of his sister and brother-in-law in Christchurch as he plans for the harsh realities of the life he faces follows on his return to India. A sentence of home detention would allow him to spend a few months with a sister and brother-in-

42     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [34] and [49]; Hessel v R [2010] NZSC 135,

[2011] 1 NZLR 607 at [77]; C v Police [2024] NZCA 136 at [49].

law in Christchurch and provide an opportunity for him to put in place a plan for his return to India, with the guidance and support of his siblings.

[86]   Standing back and being satisfied that a sentence of home detention will meet the sentencing principles of denunciation, deterrence, accountability and assisting with Mr Jammu’s rehabilitation, I am satisfied the least restrictive outcome that is appropriate is a sentence of home detention.

Result

[87]   The appeal is allowed. The sentence of two years and three months’ imprisonment  is  quashed  and  substituted  with  a  sentence  of  five   months’ home detention to be served at the address and on the conditions set out at page seven of the PAC report dated 25 March 2024.

...................................................

Eaton J

Solicitors:
Crown Solicitors, Christchurch

Counsel:
E Huda, Barrister, Christchurch