R v M CA219/03

In this case, the appellant was convicted of one charge of rape and appealed against the sentence of 2½ years imprisonment imposed on him. The appeal was heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions, were considered by the members of the Court who conferred and agreed upon this judgment. The complainant was 13 years old at the time of the offending and the appellant was 14. The complainant had met the appellant when she had been visiting her grandparents’ house in Whangamata in September 2001. The two sustained a friendship over the final school term of that year by letter and telephone. On 6 January 2002, the complainant returned to stay at her grandparents’ house. The appellant entered the basement unit where the complainant, her friend, and her brother were sleeping and had intercourse with her. The complainant woke up, pushed the appellant off her, and yelled to her friend to turn on the light. Although the complainant was not able to give a visual identification of the appellant, there was DNA evidence linking him to the attack. The complainant, previously a virgin, was examined by a doctor later that morning and a split to the hymen was noted. The victim impact statement showed that the complainant has been severely traumatised by the event.

The legal issues the court was required to decide were whether the sentence imposed was manifestly excessive in all the circumstances and whether the sentencing judge had unduly penalised the appellant for choosing to defend the matter and for his failure to accept guilt. The appellant submitted that a sentence of 2½ years imprisonment was manifestly excessive in all the circumstances, including the circumstances of and the extent of the offending, the youth of the offender, the family support for the offender, the offender’s prior good character and indeed his continued good character down to the date of sentencing, and the relevant sentencing principles as referred to by the sentencing judge. The Crown submitted that the offending in this case was serious and, even if it had been admitted, was unlikely to have been dealt with by the Youth Court. The sentencing judge gave the appellant the maximum credit he possibly could to reflect the appellant’s youth and prospects of rehabilitation. The judge was entitled to come to the view that there was no true remorse and thus that there was an absence of what would have been a further mitigating factor.

The court's reasoning and outcome was that the offending in this case was serious. The victim was young and vulnerable. The effect on the complainant has been devastating and will without doubt have long-term consequences. The sentence imposed was well within the range available to the judge given the serious nature of the offending, even taking into account the appellant’s youth and prospects of rehabilitation. The judge was entitled to come to the view that there was no true remorse and thus that there was an absence of what would have been a further mitigating factor. The appeal is dismissed.