R v D (CA370/06)

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.