R v M (CA336/05)

In the case of R v M (CA336/05), M was convicted by a jury in the High Court at Hamilton on two charges of rape and three of indecent assault of his daughter, who was between the ages of 14 and 17 years at the time of the offences. The trial judge sentenced M to concurrent terms of seven years imprisonment on the rape charges and three years on the indecent assault charges. M filed an application for leave to appeal against both his conviction and sentence nearly a year after the sentencing, out of the stipulated time. The primary legal issues in this appeal were whether M had demonstrated special circumstances justifying an extension of time to appeal and whether the appeal had any merit.

The court considered the strength of M's appeal and the reasons for the delay in filing the appeal. M's counsel argued three grounds for the appeal, which related to trial counsel's alleged errors, the unreliability of the complainant's evidence, and the weight of the evidence. The court found no merit in M's appeal. The trial counsel's decision not to call M as a witness was based on M's own instructions, and there was no evidence to suggest that the decision was wrong. The court also found that M's trial counsel had attempted to obtain the complainant's school records to demonstrate the unreliability of her evidence, but was informed by M or one of his family members that the school did not retain the records for the relevant time. M did not challenge this advice. Lastly, the court concluded that M had not met the high threshold required to demonstrate that the jury's verdict was against the weight of the evidence.

Regarding the sentence, the court found that the starting point of nine years imprisonment for the rape charges was appropriate. The court endorsed the trial judge's consideration of factors such as the multiplicity of M's offending, the complainant's vulnerability, M's breach of trust, and the effect of the offending on the complainant. The court also found that the discount of two years allowed by the trial judge for M's age and health was sufficient recognition of these factors. Consequently, the Court of Appeal dismissed M's application for leave to appeal against both his conviction and sentence.