M(CA102/2024) AND THE KING
[2024] NZCA 441
•13 September 2024 at 10.30 am
NOTE: FINAL ORDER PROHIBITING PUBLICATION OF NAME,
ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF
APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011:
SEE [2024] NZDC 1360.
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR
IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203
OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA102/2024
[2024] NZCA 441
BETWEEN M(CA102/2024) Appellant AND THE KING Respondent
| Hearing: | 29 July 2024 |
| Court: | Thomas, Jagose and Grice JJ |
| Counsel: | N P Bourke for Appellant |
| T R Simpson for Respondent |
Having been married for over eight years, with two children and a business,
the appellant and the victim separated when the appellant became
“somewhat unhinged” as a result of his views on the Government’s COVID-19
response. Although they continued to have contact with one another, and at times
consensual sexual relations, on two occasions the appellant sexually violated the
victim. He appeals his sentence of eight and a half years’ imprisonment on the grounds
the sentence was manifestly excessive, primarily because the starting point adopted
by the Judge was based on an erroneous assessment of the facts.[1]
[1] R v [M] [2024] NZDC 1360 [judgment under appeal].
Factual background
At 17 and 19 years old respectively, the appellant and the victim met in China,
her country of birth. The victim moved to New Zealand when she was 20 years old.
After what was apparently a happy and successful personal and business relationship,
the appellant became heavily involved in the “freedom” movement in response to the
Government’s introduction of the COVID-19 vaccine mandate and, in the victim’s
words, his personality “totally [changed] to become very disrespectful and arrogant”.
This and other matters put significant strain on the relationship.
Between November 2021 and early January 2022, the couple had a trial
separation which involved the appellant returning to the family home and sharing a
bed with the victim at night. This included sexual intimacy.
On 9 January 2022, the appellant threatened the victim that he would take their
children away from her. As a result, the victim left the family home with the children
and stayed in a motel. The appellant tracked them down and demanded to see her,
eventually taking the children and items belonging to the victim, including her
passport.
The couple continued to message each other, the appellant asking the victim to
come home and alternating between threats to take the children away and saying he
loved her. His behaviour in respect of COVID-19 protests and his association with likeminded people was a feature of the victim’s responses and she made his cessation
of those activities a condition of her returning home.
Charges relating to 13 January 2022
On 12 January 2022, the appellant messaged the victim saying that, if she
would have sex with him the following day and be a family, he would comply with
her requests.
On 13 January, the couple had extensive communications concerning her
desire to collect her passport and continuing their discussions about reconciliation and
his involvement with the protest action. The victim returned to the house knowing
that the appellant was going to be there. When she entered the house, the appellant
came out of the main bedroom wearing only his boxer shorts. They had a discussion
during which she suggested a peaceful separation but he told her loved her and refused
to accept they were separating. He then proceeded to engage in sexual activity with
the victim, including kissing her and touching her breast. The victim said she
attempted to push him away and told him they were not together, but she thought he
interpreted that as her teasing him. The appellant then raped the victim and digitally
penetrated her without her consent. There was then further sexual activity between
them. The victim accepted that the appellant believed they were back together at this
stage but, from her perspective, they were not.
25 January 2022
The appellant and victim reached an agreement whereby the appellant would
look after the children during the day while the victim was at work and he would leave
the house when she returned from work and took over childcare responsibilities.
The second rape occurred on 25 January 2022. The appellant had been in
Auckland with a fellow member of the freedom protest group. He messaged the victim
around 12.30 am saying he wanted to have sex. The victim did not see the message
because she was asleep. At around 5.00 am the appellant entered the house and came
into the bedroom where the victim was in bed asleep with the children next to her.
The appellant touched the victim on the thigh but she told him she was sleeping and tried to block him with her arm, reminding him they were separated. He responded
by saying they had been married for 10 years, she was his wife and he could do what
he wanted. Using his upper body to restrain her, he then fondled her, lifted her legs
high and raped her. The victim stayed silent because she did not want to wake the
children.
The charges and the trial
The appellant faced 15 charges at his trial by jury.
There were two representative charges, one of indecent assault alleging the
appellant touched the victim’s body,[2] and the other of rape,[3] both covering the period
[2] Crimes Act 1961, s 135.
[3] Sections 128(1)(a) and 128B(1).
1 November 2021 to 25 January 2022. The jury acquitted the appellant on both
charges.
In respect of the incident on 13 January 2022, the appellant faced the following
11 charges and was found:
(a) guilty of rape and unlawful sexual connection by digital penetration;[4] (b) not guilty on five charges of indecent assault alleging he kissed the [4] Sections 128(1)(a), 128(1)(b) and 128B(1).
victim (two charges), gave her a hickey, and touched her breasts (two
charges);[5]
[5] Section 135.
(c) not guilty on three charges of sexual violation (one related to oral sex and two digital penetration);[6] and
[6] Sections 128(1)(b) and 128B(1).
(d) not guilty on one charge of attempted sexual violation.[7] [7] Section 129(1).
These covered allegations occurring both before and after the rape and sexual violation
charges.
The appellant faced two charges relating to the events of 25 January. He was
found not guilty of indecent assault by touching the victim’s leg with his hand,[8] but
[8] Section 135.
guilty of rape.[9]
[9] Sections 128(1)(a) and 128B(1).
Breach of protection order
The victim was granted a temporary protection order on 3 February 2022.
On 25 March, when on bail, the appellant sent the victim photographs of the
two of them together. On the same day he messaged her parents in China asking them
why they had encouraged the victim to divorce him and saying she would be deported
back to China if she did so. In the following days he messaged her again and reacted
with a love heart to previous Facebook posts she had made. The appellant pleaded
guilty to one charge of breaching a protection order.[10]
[10] Family Violence Act 2018, ss 90(b) and 112(1)(a). He also pleaded guilty to one charge of failing
District Court sentencing
The trial Judge, Judge Greig, had issued a minute prior to sentencing recording
the factual basis on which he would sentence the appellant, saying he did so because
of the large number of charges on which he had been acquitted.
The Judge began the sentencing by referring to the appellant’s somewhat
“unhinged” state of mind throughout 2021 and 2022, resulting in the victim deciding
to separate from the appellant, something the Judge said the appellant was unable to
accept.[11] He described the appellant taking steps that were increasingly aggressive
[11] Judgment under appeal, above n 1, at [2]–[4].
and increasingly controlling, saying:[12]
[12] At [3].
And your ultimate form of control was by taking control of her body, forcing
yourself on her on two separate occasions, and they are reflected in the counts
on which you were found guilty.
In respect of the 13 January offending, the Judge said (incorrectly) that the
victim thought the appellant was out of town and therefore went to the house. He
described the rape as “prolonged and brutal,” saying it was physically and mentally
painful and it went on for a long time.[13] In his minute, the Judge referred to this taking
[13] At [8].
place over a period of between one and three hours.
In respect of the offending on 25 January, the Judge described the victim being
“utterly helpless” as the appellant “helped [himself] to her body”.[14] In his view, what
[14] At [12].
made it even more callous was that the appellant had a friend waiting for him outside
in his truck and the children were beside the victim.[15]
[15] At [12].
The Judge expressed concern at other aspects of the appellant’s behaviour
around that time, observing that he was unwell and that the appellant had, to a large
extent, acknowledged that.[16] He referred to the letter written by the appellant as
[16] At [13] and [14].
“impressive” and “moving”.[17]
[17] At [15].
The Judge took account of the fact the appellant’s children were victims
because they would be deprived of what the victim herself acknowledged is a good
father.[18]
[18] At [16].
The Judge considered, as contended by the Crown, that the offending fell into
band two of R v AM.[19] He said there was planning and pre-meditation, certainly in the
25 January offending, but also in the 13 January offending on the basis it was
prolonged and, what might have started spontaneously, continued for such a time that
premeditation came into it. He regarded the degree of harm as significant enough to
warrant being an aggravating feature over and above what would normally be found
in a rape, noting the second rape was particularly callous and the first prolonged and
brutal.[20]
[19] At [22], citing R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
[20] Judgment under appeal, above n 1, at [22].
The Judge considered the victim was vulnerable given her cultural background
and that she was a small woman against a much bigger man. He coupled that with the
breach of trust, noting the victim trusted the appellant as her main support in
New Zealand.[21]
[21] At [23].
The Judge said he accepted that the jury was entirely correct in acquitting the
appellant on many charges but it did not make what happened on either occasion any
less culpable.[22] The Judge rejected the suggestion that there was any analogy with this
Court’s decision in R v Crump, discussed in more detail below.[23]
[22] At [24].
[23] At [25], citing Crump v R [2020] NZCA 287, [2022] 2 NZLR 454.
The Judge took a starting point of 10 years’ imprisonment, increased by six
months because of the breach of protection order which occurred when the appellant
was on electronically-monitored bail. The sentence was reduced by one year for the
appellant’s prior good character and a further year because the Judge accepted the
physical discomfort the appellant would suffer in prison was significant, given his
serious back issues. That resulted in a sentence of eight and a half years’
imprisonment.[24]
The guideline judgment of R v AM
[24] Judgment under appeal, above n 1, at [28].
Before we turn to address the grounds of appeal, we discuss the guideline
judgment of this Court in R v AM and how it should be applied. We do so because, in
our assessment, judges (and counsel, both prosecution and defence) can fall into error
when they focus only on the sentencing bands and aggravating factors laid out in the
judgment without fully appreciating the context of this Court’s guidance. And, as this
Court observed in L (CA215/2021) v R, there is the risk of upward sentencing creep
and a lack of consistency if decisions applying R v AM are used to guide the starting
point instead of applying the guidance in R v AM itself.[25]
[25] L (CA215/2021) v R [2021] NZCA 297 at [18].
In R v AM, a full bench of this Court gave integrated sentencing guidance for
offending involving sexual violation.[26] It provided two sets of guidelines, the first for
sexual violation where the lead offence is rape, penile penetration of the mouth or
anus, or violation involving objects. The second is for other violations where unlawful
sexual connection is the lead offence. These are commonly referred to as the “rape”
guidelines and bands, and the “USC” guidelines and bands respectively.[27]
[26] R v AM, above n 19, at [2].
[27] At [5].
The Court emphasised that the object of the case was to provide guidance for
sentencing judges, noting that the average sentence length for rape had been
increasing.[28] The Court anticipated that, under the reformulated guidelines, some
offenders, particularly those whose offending was not characterised by aggravating
features, might receive lesser sentences than would have been imposed under the then
current practice, while others would receive longer sentences.[29] We refer to this
comment in particular because one of the criticisms of R v AM has been that flexibility
in sentencing has been removed and that the starting point for band one at six years’
imprisonment removes any incentive on a defendant to plead guilty on the basis that,
even with allowances for mitigating factors, a sentence of imprisonment would appear
to be almost inevitable.[30]
Culpability assessment factors
[28] At [29] and [30].
[29] At [33].
[30] See for example Te Aka Matua o te Ture | New Zealand Law Commission Alternative Pre-trial
In AM, this Court discussed factors relevant to the assessment of culpability,
nine of them aggravating the seriousness of the offending and two mitigating its
seriousness. The Court made some general observations for the purpose of guiding
the assessment of culpability factors. First, that the guidelines were for the purpose of
providing direction in the manner of application of the aggravating and mitigating
factors in the Sentencing Act 2002.[31] Secondly, the Court emphasised the need for
sentencing judges to exercise judgement, evaluate all the circumstances and not take
a mechanistic approach.[32]
[31] R v AM, above n 19, at [35].
[32] At [36].
Those two cautions are critical. While the Sentencing Act sets out a number
of mandatory aggravating and mitigating factors,[33] the Court strived to explain how
those should be applied in considering the bands in the context of sentencing on sexual
violation charges which inherently involve some of those aggravating factors.
Violence and harm to the victim are examples of such aggravating factors. Violence
is inherent in any act of sexual violation.[34] Harm is inherent in the offending.[35]
The extent and seriousness of these factors needs to be assessed.
[33] Sentencing Act 2002, s 9.
[34] R v AM, above n 19, at [38].
[35] At [44].
What is critical is that sentencing judges do not simply count up the number of
aggravating factors that could apply but consider them in a measured way in the
context of the circumstances and using the examples the Court gives of cases which
fall into the four bands.
The two culpability assessment factors seen as mitigating the seriousness of
the offending are a mistaken belief in consent and consensual activity immediately
before the offending.[36] Again, it is not necessarily the case that either of these two
factors will mitigate the offender’s culpability. A mistaken belief in consent may do
so where it is plain that the belief, while unreasonable, was genuine.[37] Similarly,
depending upon the circumstances, culpability may be diminished where there was
consensual sexual activity immediately prior to the offending.[38] Recognising that this
is a difficult and controversial issue, the Court stressed the need to consider the totality
of the behaviour comprising the sexual violation.[39]
The bands and how they are to be applied
[36] At [53]–[59].
[37] At [53].
[38] At [55] and [59].
[39] At [60].
The Court made a number of general observations prior to setting out the
bands. It noted that offending can vary in seriousness in terms of both the offender’s
culpability and effects on the victim, but said each of the bands assumes a level of
unlawful activity and that any form of sexual violation involves serious offending.
The seriousness of the offending is reflected in both the 20-year maximum term of imprisonment and the presumption in s 128B(2) of the Crimes Act 1961 that those
convicted of sexual violation must be sentenced to imprisonment unless the court
considers otherwise, noting the particular circumstances of the offender and the
offence.[40]
[40] At [77].
The Court said that degrees of seriousness must be stated and that is an
assessment for the sentencing judge. If offending properly falls at the lower end of
the spectrum, then the judge needs to say that. It does not mean that the offending is
not being treated as serious in itself.[41] All this was said to emphasise that what is
required is an evaluative exercise. The Court specifically acknowledged that judges
have a reasonable degree of latitude in assessing culpability.[42] While there are four
bands for rape offending, the Court recognised that there will be cases which are so
unusual that they will require a starting point below the bottom of band one.[43]
[41] At [78].
[42] At [79].
[43] At [83].
Importantly, each band includes examples described by the Court as being for
the purpose of assisting with the application of the culpability principles.[44]
[44] At [91].
For the purposes of this decision, we focus on rape bands one and two. It is
convenient at this point to reiterate what the bands say and to discuss the cases given
as examples of those sitting at the lower and higher ends of the two bands.
Rape band one — six to eight years
Rape band one, with starting points of six to eight years’ imprisonment, is
described as appropriate for offending at the lower end of the spectrum where the
aggravating features are either not present or present to a limited extent.[45] Examples
of cases, provided in R v AM,[46] with starting points at the lower end of band one
demonstrate the level of seriousness attached to that lower end.
[45] At [93].
[46] At [93].
In R v Murphy, the offender came home after drinking and found an unknown
man and woman asleep in his bed.[47] He tried to wake them. The man left but the
woman woke to find the offender attempting to have sexual intercourse with her. She
thought it was the man who had left the room and sexual intercourse occurred.[48] It was
not until afterwards that she realised she had had intercourse with the offender.[49]
[47] R v Murphy CA310/96, 26 September 1996, at 1.
[48] At 2.
[49] At 3.
In R v Pehi, the offender and victim had been in a relationship for about six
months.[50] After kissing when in the victim’s bedroom, the offender, by then extremely
drunk, assaulted her and engaged in non-consensual activity culminating in rape.
While the victim was annoyed, she said she would have been willing nevertheless to
have had sex with the offender that night.[51]
[50] R v Pehi CA86/06, 31 October 2006 at [4].
[51] At [5].
In R v Hill, the offender and victim became intoxicated at a party, then shared
a taxi ride home to the victim’s house where they drank more alcohol.[52] The victim
asked the offender to leave, and left the room herself but, when she returned, he was
still there.[53] She told him again he should leave, whereupon he pushed her into a cane
basket, causing minor scraping and bruising to her thigh, removed her clothing,
penetrated her briefly, then stopped and apologised.[54]
[52] R v Hill CA94/02, 21 October 2002 at [3]–[4].
[53] At [4].
[54] At [5].
Those three cases were all considered to fall within the lower end of rape
band one because the encounters were considered relatively brief and the degree of
violation correspondingly brief. While both Pehi and Hill involved a level of violence,
it was considered relatively less serious than that seen in other cases.[55]
[55] R v AM, above n 19, at [94].
The examples at the higher end of band one are R v Wirangi, where the
38-year-old offender, and friend of the 16-year-old victim’s family, was looking after
the home where the victim was staying.[56] He exposed himself and she asked him to leave. She was later awoken by him removing her clothes. He raped her and then
masturbated in front of her.[57]
[56] R v Wirangi [2007] NZCA 25.
[57] At [3].
R v Stusky involved a 31-year-old male offender and 16-year-old female who
had met as part of a group for the first time that day.[58] They had spent the afternoon
drinking alcohol but later ended up alone. The offender grabbed the victim, pushed
her into the bushes, removed her lower clothing and, despite her struggles, raped her.[59]
[58] R v Stusky [2009] NZCA 197 at [3].
[59] At [4].
In R v H (CA248/02), the adult offender and victim had been in a volatile
relationship, the victim at one point obtaining a protection order against him.[60] The
offender had telephoned the victim asking to come over but she had refused. She was
later awoken by him at the door. The offender pushed his way in, would not allow the
victim to leave, forced her onto a bed where he performed oral sex on her and raped
her. She eventually escaped.[61]
[60] R v H (CA248/02) CA248/02, 31 October 2002 at [2].
[61] At [3].
It was the victims’ youth and the age disparity which were particularly relevant
in Wirangi and Stusky. Wirangi also involved a breach of trust and a range of sexual
activity, whereas Stusky involved an element of abduction and a particular impact of
the offending on the victim. H attracted a higher starting point because of the more
extensive nature of the sexual activity and the fact the offending involved forced entry
into the victim’s home.[62]
Rape band two – seven to 13 years
[62] R v AM, above n 19, at [95].
The Court said that, in comparison with rape band one, band two is appropriate
for a scale of offending and levels of violence and pre-meditation which, in relative
terms, are moderate. It covers offending involving a vulnerable victim or an offender
acting in concert with others or some additional violence. The band is appropriate for
cases involving two or three of the factors increasing culpability to a moderate degree.[63] The Court gave the example of seven cases as falling within the lower end
of rape band two. These cases involved a range of offending.
[63] At [98].
In R v Dunick, the offender and victim had been friends for about six weeks
and the victim invited the offender to her house.[64] The victim rejected his advances
but the offender removed the victim’s clothing, digitally penetrated her causing pain,
and then raped her. He made her kneel on the bed, and again penetrated her while
slapping her buttocks and making a number of derogatory sexual references.
She eventually escaped.[65]
[64] R v Dunick [2008] NZCA 482 at [1].
[65] At [2]–[3].
In R v Batt, a 38-year-old woman was working as a night porter in a hotel and
the offender was a guest.[66] In the early hours of the morning, he got into her room on
a subterfuge, told her he had a knife and raped her.[67]
[66] R v Batt [1987] 1 NZLR 760 (CA).
[67] At 761.
In R v Castles, the male victim and the seven male offenders were classmates
and attended a party together which involved heavy drinking.[68] The victim was held
down and his eyebrows shaved.[69] He then went to sleep in a bedroom. The offenders
found a broomstick, smeared it with Vicks VapoRub and then attempted
unsuccessfully to insert it into the victim’s anus.[70] They returned 30 minutes later and
forced the broomstick 10 cm into his anus, causing considerable injury.[71]
[68] R v Castles CA105/02, 23 May 2002 at [2].
[69] At [3].
[70] At [4].
[71] At [5].
In R v W, the male offender offended against several boys aged 11 to 16 over
a 10-year period.[72] He was their boxing trainer. The majority of the offending
involved masturbation of the victims and simulated intercourse to ejaculation. There
was a single sexual violation charge.[73]
[72] R v W CA87/93, 4 June 1993 at 1.
[73] At 2.
In R v Anderson, the 22-year-old offender saw the 18-year-old female victim
walking home.[74] He sexually propositioned her and, as she tried to walk away, he
pulled her into an empty section, covered her mouth, pushed her violently to the
ground and raped her.[75]
[74] R v Anderson CA199/05, 2 November 2005.
[75] At [2] and [3].
In R v Stojanovich, the offender was the father of the 17-year-old victim’s
sibling.[76] The victim was living with him and viewed him as a father-figure.[77]
The offender took the victim on a business trip, bought her alcohol, took her to a motel
room and, while she was asleep, began touching her, then penetrated her with his
fingers and raped her from behind.[78]
[76] R v Stojanovich [2009] NZCA 210 at [2].
[77] At [3].
[78] At [4]–[7].
In R v Takiari, a 19-year-old visually-impaired victim was walking home when
the offender grabbed her from behind and took her into nearby school grounds, where
he removed her underwear, performed oral sex on her and forced her to do the same
to him.[79]
[79] R v Takiari [2007] NZCA 273 at [2]–[4] and [17].
It can be seen therefore that cases at the lower end of rape band two involve
significant aggravating factors: an increased level of violence, range of sexual activity,
degradation, threatened or actual use of a weapon, group attack, breach of trust to a
moderate degree over an extensive period, premeditation, abduction and predatory
behaviour.
The cases at the higher end of rape band two involve more extensive levels of
violence, the use of threats, the insertion of objects and additional degrading aspects,
premeditation, home invasion and multiple sexual violations.[80] We take just two
[80] See the examples listed in R v AM, above n 19, at [102], and the discussion at [103] and [104]. .
examples. In R v Morris, the offending took place over a period of one and a half to
two hours.[81] The victim and offender were hitchhiking together after having just met.
[81] R v Morris [1991] 3 NZLR 641 (CA) at 642.
While they were seeking a ride, the offender threw the victim into some bushes, raped
her, forced her to have anal intercourse, hit her around the head and became more violent as she screamed with pain. He then performed a further act of intercourse
while threatening her with a piece of wood, saying he intended to keep her there all
night. She managed to escape but became pregnant, suffering psychological harm as
well as physical injury to her body.[82] In R v V, a 25-year-old offender smashed a
window to gain entry to a retirement home, where he raped and threatened to kill a
| 77- year-old | occupant.[83] |
The band beneath band one
[82] At 643.
[83] R v V CA442/94, 23 May 1995 at 1 and 2.
As Kós P discussed in Crump, the way in which the R v AM guideline judgment
is structured means there is actually a band beneath band one applying in cases of the
lowest culpability and this fact is sometimes overlooked.[84]
[84] Crump v R, above n 23, at [98] per Kós P.
AM gave an example of a case outside the bottom of band one.[85] R v Greaves
concerned a 17-year-old victim who invited the offender to her flat and they engaged
in intimacy.[86] Sexual intercourse was initially consensual, but the victim changed her
mind and asked the offender to stop. He did not do so until the act of sexual intercourse
was complete.[87]
[85] R v AM, above n 19, at [96], citing R v Greaves [1999] 1 Cr App R (S) 319.
[86] R v Greaves, above n 85, at 319.
[87] At 320.
Having reminded ourselves how the guidelines in R v AM are to be used, we
now turn to address the appellant’s appeal and the application of the guidelines to the
facts.
Did the Judge err in his assessment of the factual basis for sentencing?
This ground of appeal relates to the offending on 13 January 2022.
In Mr Bourke’s submission, for the appellant, the Judge made crucial errors.
[61] Although the victim had said in her evidential interview that she thought the appellant was not at home when she went to the house and she made sure his car was not in the driveway before entering, by the time of trial it was accepted, and indeed
the victim had confirmed to the officer in charge, that she knew the appellant was
going to be home. Their communications throughout the day made it abundantly clear
that he would be home and was wanting to see her, and his car was parked in the
driveway on her arrival.
We accept that this was a material error in the Judge’s sentencing and must
have contributed to his assessment of the extent of premeditation involved.
We also accept that the Judge erred in his description of the offending, in
particular that it was wrong to describe the offending as prolonged and brutal.
While the Judge was the trial Judge and as such entitled to sentence on the
basis of his findings, that is only where those findings are consistent with the evidence
and with the jury verdict.
Although the Judge in sentencing referred to the number of acquittals, the basis
of the conclusions he otherwise expressed were not consistent with those acquittals.
As discussed above, the evidence was of a relatively long sexual encounter but, as the
sheer number of charges discloses, the rape and digital penetration formed one part of
the encounter only. The jury was satisfied that, at a minimum, the appellant had a
reasonable belief in the victim’s consent for the other parts of the encounter. While
the Judge accepted the jury were entirely correct in acquitting the appellant on many
of the charges, he observed it did not make what happened “any less culpable”.[88] It is
at this point we refer to our observations above on what this Court said in the guideline
judgment of AM. That is, that a mistaken but unreasonable belief of consent may make
matters less serious than deliberate acts.[89] Where it is plain that the belief, while
unreasonable, was genuine, this factor may reduce culpability. That this was the case
on 13 January is evidenced by the jury verdicts acquitting the appellant on the other
charges and this should have been considered a mitigating factor of the offending.
[88] Judgment under appeal, above n 1, at [22].
[89] R v AM, above n 19, at [53].
Further, while the surrounding sexual activity is not to the same obviously
consensual level as applied in Crump, it is relevant to an overall assessment of the
appellant’s culpability.
While the Judge was clearly concerned by the surrounding context of the
appellant’s behaviour around this time, it is also true on the evidence that the victim at
times welcomed and even invited contact between the two of them. For example, on
31 December 2021, the victim had messaged the appellant asking if he would “like to
come home and sleep with [her] please”. These comments should not be taken as
suggesting the victim was not entitled to refuse to consent to sexual activity on other
occasions. It is also clear from the complainant’s evidence that it took her some time
to understand that the appellant’s behaviour amounted to abuse. Our concern is that
the Judge focussed too much on the appellant’s overall behaviour without
contextualising it.
Was the starting point within range?
Ms Simpson, for the Crown, submitted that the offending clearly fell within
band two of AM. In light of our discussion above, it will be clear we do not accept
that submission.
The Crown referred to the victim’s vulnerability, planning and premeditation,
the scale of the offending, degree of harm and breach of trust as aggravating features
of the offending. This approach is an example of what this Court referred to in Crump
as “over-compiling aggravating factors”.[90] We would observe that this is a trap easily
fallen into when the focus is only on trying to compile aggravating factors and
interpreting AM’s guidance as being focused on that alone. But, as we have said,
judges and counsel need to focus on the guidance given by the particular examples in
the guideline judgment.
[90] Crump v R, above n 23, at [101], referring to Orchard v R [2019] NZCA 529, [2022] 2 NZLR 37
[70] When those examples are considered, it is clear that the offending on 25 January, which should have been taken as the lead offence, falls at most at the lower end of band two or more correctly the higher end of band one. It cannot be considered
as on a par with R v Batt or R v Castles, for example. This Court described Dunick
and Batt as being on the cusp of bands one and two, observing that in Dunick, the
combination of the increased level of violence, range of sexual activity and associated
degradation took the offending into the bottom of band two rather than the top of
band one.[91]
[91] R v AM, above n 19, at [99].
The offending is more similar to, although less serious than, the cases cited as
falling at the higher end of band one, such as R v Wirangi and R v H.
We do not accept the description of the offending as particularly callous in the
context of the cases cited in AM. We accept the victim was vulnerable, given she was
asleep in bed beside her children, there was premeditation and an entry into the
bedroom when there should not have been. A breach of trust was inherent in these
factors. We note that the appellant was entitled to be in the house.
Without in any way minimising the impact on the victim, in the context of
sexual offending generally and the guidance of AM, these are aggravating features at
the lower end of the scale.
For these reasons, we consider that the rape on 25 January falls at the top of
band one, with the appropriate starting point being seven years’ imprisonment.
The offending on 13 January does have an unusual fact pattern but nevertheless
involved a rape and sexual violation by digital penetration. Considering it in context,
there should be an uplift of one and a half years’ imprisonment in respect of this
offending.
For the sexual offending therefore, we conclude that the appropriate starting
point was eight and a half years’ imprisonment.
Was the uplift for the breach of protection order manifestly excessive?
We can deal with this concisely. The answer to the question is yes, the uplift
was manifestly excessive. The breach to which the appellant pleaded guilty occurred
on one occasion and involved the sending of photographs, reacting with love hearts to
a Facebook post and messaging the victims’ parents. We agree that, on its own,
offending such as this by an offender with no prior convictions and no violence or
threats of violence would ordinarily be met by at most a community-based sentence,
although a conviction and discharge would still be within range.
In the context of a lengthy prison sentence, we do not consider there should
have been any uplift in respect of this charge.
What sentence should be imposed?
From a starting point of eight and a half years’ imprisonment, we deduct the
two years allowed by the Judge for personal mitigating factors, as we are satisfied that
appropriately recognises the appellant’s prior good character, content of the
“impressive” letter he wrote to the Judge and impact on him of imprisonment given
his back issues.[92] The result is a final sentence of six and a half years’ imprisonment.
Result
[92] Judgment under appeal, above n 1, at [26].
The appeal is allowed.
The sentence of eight and a half years’ imprisonment is quashed and replaced
by a sentence of six and a half years’ imprisonment.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
| Judgment: | 13 September 2024 at 10.30 am |
JUDGMENT OF THE COURT
| A | The appeal is allowed. |
| B | The sentence of eight and a half years’ imprisonment is quashed and |
| replaced by a sentence of six and a half years’ imprisonment. |
____________________________________________________________________
REASONS OF THE COURT
(Given by Thomas J)
M(CA102/2024) v R [2024] NZCA 441 [13 September 2024]
to stop for the police on 1 February 2022.
and Trial Processes: Possible Reforms (NZLC IP30, 2012) at 44.
at [28].
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