R v Seller

[2007] NZCA 422

NOTE:  PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 264/07 [2007] NZCA 422

THE QUEEN

v

RICKY JOHN SELLER

Hearing:         19 September 2007

Court:            Ellen France, John Hansen and Wild JJ Counsel:      S Bailey for Appellant

S B Edwards for Crown

Judgment:      27 September 2007         at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by John Hansen J)

R V  SELLER CA CA 264/07  27 September 2007

[1]      On the night of 16 October 2005 the complainant became very intoxicated at a suburban Christchurch tavern.   She went outside, and was refused readmission. She became distraught as her handbag, containing money and her cellphone, was inside.   The appellant, posing as an employee of the tavern, offered to drive her home, stating untruthfully that he lived in the same rural area on the outskirts of Christchurch.  Ultimately he drove to an isolated road saying, untruthfully, that he was going to check on his daughters.  He pulled to the side of the road and assaulted the complainant.   He ripped her clothing, bound  her wrists above her head and threatened to hit her if she resisted further.  He raped her, without ejaculation.  The appellant then stated he was taking the complainant back to his house to “finish the job off”.  There, an opportunity presented itself for her to run to the bedroom, where she presented to the appellant’s brother’s partner in a distressed state and terrified of the appellant.  That person offered to drive the complainant home, but the appellant insisted on accompanying them.   At the complainant’s home there was an angry exchange.  The complainant went inside and told her family what had occurred, and the police were called.

[2]      Following a trial before Judge P  A Moran and  a  jury the  appellant  was convicted   of  rape.     The   Judge   identified   a   starting   point   of  eight   years’ imprisonment, but considered the aggravating features present warranted an uplift to an effective sentence of ten years’ imprisonment.

[3]      The appellant appeals, saying the sentence was manifestly excessive.   He submits the rape was not premeditated and was not particularly violent.  He further submits the sentencing Judge placed too much weight on the impact of the offending on the victim.  While accepting the starting point of eight years’ imprisonment, he submits that an uplift of 25 per cent for the additional factors was manifestly excessive.

[4]      We disagree for the following reasons:

(a)       The  complainant  was  vulnerable  due  to  her  being  aged  18,  very intoxicated, distraught, and having no means to get home to her child.

There was a level of breach of trust in that the complainant placed herself in the appellant’s care (R v Scurrah CA304/05 8 March 2006).

(b)      The rape was premeditated in that the appellant pretended to be an employee of the tavern as a means of enticing the victim into his vehicle.  He also lied by saying he lived near the complainant, and by saying, when he went up an isolated road, that he was going to check on his daughters.

(c)      The Judge correctly identified that there was violence attaching to this rape beyond that inherent in such offending.

(d)      The starting point of eight years was correctly identified by the Judge

(R v A [1994] 2 NZLR 129 (CA)).

(e)      It  is  clear  from the  victim  impact  statement  that  this  rape  had  a severe impact on the victim.  In R v Billam [1986] 1 All ER 985 the Court of Appeal identified that an aggravating feature requiring a higher sentence than would otherwise be the case where “the effect upon the victim, whether physical or mental, is of special seriousness” (at 988). The views of the victim are given statutory recognition in New Zealand (s 8(f) Sentencing Act 2002).

[5]      While the sentence is stern, in the light of these aggravating factors it was within range.

[6]      The appeal is dismissed.

Solicitors
Crown Law Office, Wellington