[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Seller

Details

AGLC: R v Seller [2007] NZCA 422
Case: [2007] NZCA 422
Decision Date: 27 September 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Ricky John Seller against his conviction and sentence for rape. The incident occurred on 16 October 2005, where the complainant, very intoxicated, was refused readmission to a tavern in Christchurch. The appellant, posing as an employee, offered to drive her home but instead drove to an isolated location and raped her. Following a trial, the appellant was convicted of rape and sentenced to ten years' imprisonment. The appellant's appeal focused on the sentence, arguing it was manifestly excessive due to the absence of premeditation and the level of violence.

The Court of Appeal considered several factors in determining the appeal's outcome. Firstly, the vulnerability of the complainant due to her age, intoxication, and emotional state was highlighted. The Court also noted the appellant's premeditated actions in deceiving the complainant and the violence involved. The Court further emphasised the severe impact on the victim, both physically and mentally, which warranted a higher sentence. The starting point of eight years was deemed appropriate, but the Court found the uplift to ten years was justified due to the aggravating factors.

The Court of Appeal dismissed the appeal, finding that the sentence was within the appropriate range considering the aggravating factors. The Court upheld the ten-year imprisonment sentence, acknowledging the severity of the crime and its impact on the victim. The Court concluded that the appellant's arguments did not warrant a reduction in the sentence, and thus, the original sentence stood.

Orders