M(CA102/2024) AND THE KING - [2024] NZCA 441

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZCA 441
Decision Date: 13 September 2024 at 10.30 am

CaseChat Overview and Summary

The appellant appealed his sentence of eight and a half years’ imprisonment for sexual offences committed against his ex-wife. The Court of Appeal was asked to determine whether the sentence was manifestly excessive, particularly because the starting point adopted by the trial Judge was based on an erroneous assessment of the facts. The Court held that the trial Judge had erred in his assessment of the factual basis for sentencing and his description of the offending on 13 January 2022. The Judge had accepted the jury were entirely correct in acquitting the appellant on many charges but had failed to consider this as a mitigating factor. The Court concluded that the appropriate starting point was eight and a half years’ imprisonment. However, the uplift for the breach of the protection order was manifestly excessive. The appeal was allowed and the sentence was quashed and replaced by a sentence of six and a half years’ imprisonment.

Orders