R v H CA287/03

The appellant, H, appeals against his conviction in the High Court at Hamilton on one count of sexual violation by rape and his sentence of seven and a half years imprisonment. The appeal is based on the assertion that the second count, which related to offences that occurred between 1986-88 in Hamilton, was unsupported by the evidence. The appellant was also convicted on three other representative charges of rape and sexual violation by rape. The first and second counts related to offending that occurred in Hamilton between 1981-86 and 1986-88 respectively, while the third and fourth counts related to offending that occurred in Porirua between 1981-86 and 1986-88 respectively.

The court was required to decide whether the conviction on the second count was supported by the evidence and whether the sentence imposed was manifestly excessive. The appellant submitted that the conviction on the second count could not be sustained because the complainant could not accurately recall the last incident of abuse that occurred at H Road, and it was possible that she was over 13 years old during the period covered by the second count. The Crown accepted that it was open to the court to find that the second count was unsupported by evidence, but submitted that this did not make the sentence manifestly excessive.

The court held that the conviction on the second count was unsupported by the evidence and must be quashed. However, the court was unpersuaded that any adjustment in the sentence was required. The remaining three representative counts involved repetitive acts of rape beginning when the victim was 10 and continuing for seven years. The court held that it made no difference to the appellant's culpability on the three remaining representative counts that there were not incidents at Hamilton after 1984.

The appeal against conviction is allowed. The conviction on count two is quashed. The appeal against sentence is dismissed.