R v D (CA370/06) - [2007] NZCA 74

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
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˝ NOTE: DISTRICT COURT ORDER SUPPRESSING PUBLICATION OF APPELLANT'S NAME REMAINS IN FORCE.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA370/06 [2007] NZCA 74

THE QUEEN

v

D (CA370/06)

Hearing: 8 March 2007
Court: Ellen France, John Hansen and Williams JJ Counsel: A S Greig for Appellant
C L Mander for Crown

Judgment: 19 March 2007 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by John Hansen J)

R V D (CA370/06) CA CA370/06 19 March 2007

[1] The appellant was indicted on six counts of unlawful sexual connection, two of which were representative. On 15 August 2006 he pleaded guilty to one charge of sexual violation by unlawful sexual connection occasioned by the penetration of the complainant’s anus with his penis. The Crown offered no evidence on the other counts in the indictment.

[2] On 13 September 2006 Judge McKegg sentenced the appellant to four and a half years imprisonment.

[3] He appeals against that sentence on the ground it is manifestly excessive.

Background facts

[4] Between November 2004 and July 2005 the appellant and the complainant were in a sexual relationship. Consensual anal intercourse was initially part of their sexual activity, although the complainant had indicated previously she preferred it were not.

[5] On 21 January 2005 the complainant wrote to the appellant setting out her concerns, and making it clear she did not consent to any further activity of this nature. This letter was given to the appellant on 23 January 2005. On the evening of
22 May 2005, at the complainant’s house, the appellant initiated sexual activity with the complainant. This initially involved vaginal intercourse, but the appellant then began having anal intercourse with the complainant. When he commenced this he was aware she did not consent, but notwithstanding her objections, he continued his actions.

The sentence

[6] The Judge observed the appellant was on clear notice the complainant would not consent to anal intercourse. He identified this Court’s judgment in R v A [1994] 2 NZLR 129 (CA), as fixing a starting point for a contested rape of

eight years, and observed that in the later case of R v Castles CA105/02

23 May 2002 this Court held the same starting point should apply generally to the anal rape of a person of either sex in the absence of any particular aggravating features.

[7] The Judge considered the appellant was entitled to a substantial discount for his guilty plea, the fact he had no relevant previous convictions, and his remorse. He made a three and a half year allowance, resulting in an end sentence of four years and six months imprisonment.

Submissions

[8] On behalf of the appellant, Mr Greig submitted the starting point adopted by the learned District Court Judge of eight years imprisonment was too high. He accepted that the starting point for a contested rape,…

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.

Continue reading R v D (CA370/06)

Details

AGLC: R v D (CA370/06) [2007] NZCA 74
Case: [2007] NZCA 74
Decision Date: 19 March 2007

CaseChat Overview and Summary

The appellant in this case was indicted on six counts of unlawful sexual connection, with two of those counts being representative. He pleaded guilty to one charge of sexual violation by unlawful sexual connection, specifically the penetration of the complainant’s anus with his penis. The Crown did not present evidence on the other counts in the indictment. The appellant was sentenced to four and a half years imprisonment by Judge McKegg on 13 September 2006. The appellant appealed against this sentence, arguing it was manifestly excessive.

The court was required to decide whether the starting point for sentencing, the discount for the guilty plea, and the consideration of mitigating factors were appropriate. The appellant argued that the starting point of eight years imprisonment was too high, and that a lower starting point should be adopted due to his guilty plea. He also argued that a greater allowance should have been made for the guilty plea and other mitigating factors. The Crown submitted that the Judge appropriately adopted the starting point of eight years imprisonment and that the allowance given in this case could only be viewed as generous.

The Court held that the starting point for a contested rape is eight years, as established in R v A. The Court rejected the appellant's argument that a lower starting point should be adopted due to his guilty plea, stating that such a course would allow an offender to enjoy a double benefit from the guilty plea. The Court also rejected the appellant's argument that the trauma suffered by the victim would be less than if she had been attacked by a stranger, stating that there is no general principle to that effect. The Court found that the appellant was in no doubt that his behaviour was not being consented to, and that the complainant had been significantly traumatised by this offending. The Court concluded that the sentence imposed on the appellant must also be viewed as lenient.

The appeal was dismissed, and the District Court order suppressing publication of the appellant's name remains in force.

Orders