R v N (CA354/03)

This appeal concerns the sentence of five years’ imprisonment imposed on the appellant by the District Court at Dunedin on 29 August 2003. The appellant contends that the sentence was manifestly excessive. The appellant had been in a sexual relationship with the complainant for about a year prior to the date of offending, although they remained at their own respective addresses. On 10 July 2003, the two of them attended the opening of a bar. During the course of the evening both consumed a substantial quantity of alcohol. The following morning, the appellant’s sexual advances were rejected, and he followed the complainant into her home, where he strangled and raped her. The appellant then picked up a 380mm carving knife and threatened to kill himself. The Police were called, and until they arrived, the appellant passively waited. The appellant generally admitted the facts as outlined and told the Police that he knew he was in danger of losing the complainant as a partner and that the rape was an attempt to gain some ‘ownership’ of her. At that time and thereafter he appeared remorseful and expressed sorrow for what had happened. He asked that his apologies be passed on to the complainant.

The legal issues before the Court of Appeal were whether the sentence of five years’ imprisonment was manifestly excessive and whether the mitigating factors raised by the appellant's counsel, including the plea of guilty at the earliest possible opportunity and the appellant's willingness to provide assistance for the complainant's teenage son to attend a course, warranted a reduction in sentence. The Court also considered whether the serious aggravating circumstances, including the threat to kill, the breach of trust, and the fact that the offending took place in the victim’s home, warranted an increase in sentence. The Court examined whether the sentence was within the discretion properly available to the sentencing Judge, and whether the failure to specifically refer to the appellant's offer of amends under section 10 of the Sentencing Act 2002 meant that the sentence was otherwise outside of the properly available sentencing discretion.

The Court of Appeal found that the Judge had assessed the mitigating factors raised by the appellant's counsel and the aggravating factors noted in the case, and concluded that the appropriate sentence was five years’ imprisonment. The Court accepted that the appellant's willingness to provide assistance for the complainant's teenage son to attend a course was a mitigating factor, but found that it was not appropriate for the Judge to make such an order against an impecunious man. The Court also found that the facts of this matter were so dissimilar to previous cases where sentences of less than five years’ imprisonment had been imposed in cases of sexual violation by rape, that the previous cases provided no real assistance. The Court concluded that the final sentence of five years’ reached by the Judge in the Court below was not within the discretion properly available to him, and that the sentence was not manifestly excessive. The appeal was accordingly dismissed.

The final orders of the Court of Appeal were that the appeal against the sentence of five years’ imprisonment imposed on the appellant by the District Court at Dunedin on 29 August 2003 was dismissed.