R v Tandy - [2007] NZCA 550

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA521/07 [2007] NZCA 550

THE QUEEN

v

STEPHEN PETER TANDY

Hearing: 15 November 2007
Court: Wilson, Chisholm and Potter JJ Counsel: S B Edwards for Crown
P T R Heaslip for Respondent

Judgment: 29 November 2007 at 3.30pm

JUDGMENT OF THE COURT

A Leave to appeal is granted. B The appeal is allowed.
CThe sentence of six and a half years imprisonment for sexual violation by rape is quashed and is replaced by a sentence of eight years
imprisonment.

R V STEPHEN PETER TANDY CA CA521/07 29 November 2007

REASONS OF THE COURT

(Given by Chisholm J)

[1] The Solicitor-General seeks leave to appeal against a sentence of six and a half years imprisonment imposed on the respondent in the District Court for sexual violation by rape. There is no appeal against a concurrent sentence of one months imprisonment for indecent assault involving the same victim. Pleas of guilty to both charges were entered by the respondent after the complainant had completed her evidence in chief and had been cross-examined by counsel for two of the respondent’s three co-offenders. Subsequently the jury found those three co-offenders guilty on various counts, including being a party to the respondent’s rape.

[2] It is alleged that errors by the sentencing Judge gave rise to a manifestly inadequate sentence. In particular the Judge adopted a lower starting point than the eight years indicated by R v A [1994] 2 NZLR 129 (CA); misconstrued part of the evidence; erroneously distinguished Solicitor General v Mihaka & Taia CA397/98
23 February 1999; effectively double counted the mitigating allowance for the guilty plea; and gave an excessive discount for the late guilty plea.

Facts

[3] On 20 October 2004 the complainant, aged 14, and her male friend, aged 13, ran away from home. That evening they met the respondent and his three co-offenders, who were not previously known to them. They bought beer and went to the grounds of a nearby school where they began drinking.

[4] While at the school grounds one of the respondent’s co-offenders took the complainant around the side of a classroom and sexually violated her, following which they rejoined the group. The group then walked to a tin shed at the rear of the address of one of the respondent’s co-offenders and continued drinking.

[5] Soon after the group arrived at the shed the complainant was digitally penetrated by two of the respondent’s co-offenders in the presence of the whole

group. Around this time the respondent touched the complainant on the bottom, this being the indecent assault to which the respondent pleaded guilty.

[6] After this the complainant was taken out of the shed by one of the respondent’s co-offenders who raped and orally violated her. When they returned to the shed the respondent asked the complainant if she had been raped to which she grunted or moaned in…

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 Tandy

Details

AGLC: R v Tandy [2007] NZCA 550
Case: [2007] NZCA 550
Decision Date: 29 November 2007

CaseChat Overview and Summary

In the case of the Crown v Tandy, the Court of Appeal of New Zealand reviewed a sentence imposed on the respondent, Stephen Peter Tandy, for sexual violation by rape. The Crown, represented by S B Edwards, sought leave to appeal against the sentence of six and a half years imprisonment, arguing that it was manifestly inadequate due to alleged errors in the sentencing process by the Judge. The appeal was against a concurrent sentence of one month imprisonment for indecent assault involving the same victim. The respondent's counsel, P T R Heaslip, opposed the appeal, arguing that the sentence was appropriate given the circumstances.

The central legal issue in this appeal was whether the sentence imposed by the District Court was adequate, considering the alleged sentencing errors. The Crown argued that the Judge had misapplied the starting point for sentencing, misconstrued evidence, wrongly distinguished a previous case, and excessively discounted the mitigating factors, particularly the late guilty plea. The respondent's counsel contended that the Judge's approach was justified and that the sentence was appropriate.

The Court of Appeal found that the Judge had indeed erred in several respects. The starting point for sentencing, as established in R v A, should have been eight years imprisonment, not seven as determined by the Judge. Furthermore, the Judge's double discount for the guilty plea was deemed excessive and contrary to principle, given that the plea was entered late and the complainant had to testify. The Court concluded that an appropriate discount for the plea would have been around 10 percent, resulting in a sentence of eight years imprisonment, which was considered the lowest possible sentence.

In light of these findings, the Court granted leave to appeal and allowed the appeal. The original sentence of six and a half years imprisonment was quashed and replaced with a sentence of eight years imprisonment. The Court also noted that while the original sentence might have been within the Judge's discretion, the errors identified warranted intervention.

Orders