R v Taplin

[2007] NZCA 399

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA204/07 [2007] NZCA 399

THE QUEEN

v

NORMAN KIRK DOUGLAS TAPLIN

Hearing:         26 July 2007

Court:            Wilson, Panckhurst and Venning JJ Counsel:   R J Stevens for Appellant

S B Edwards for Crown

Judgment:      7 September 2007         at 11am

JUDGMENT OF THE COURT

Appeal dismissed.

REASONS OF THE COURT

(Given by Wilson J)

R V NORMAN KIRK DOUGLAS TAPLIN CA CA204/07  7 September 2007

[1]      On 16 April 2007, Mr Taplin was sentenced in the Wellington District Court on four charges of sexual violation by unlawful sexual connection, and one count of rape.  He was sentenced to seven years’ imprisonment on the lead charge of rape. On the remaining counts he was sentenced to four years’ on each charge, to be served concurrently with each other and with the sentence for rape.  The effective sentence was therefore one of seven years’ imprisonment.

[2]      The  appellant  appeals  against  that  sentence  on  the  ground  that  it  was manifestly excessive.

Facts

[3]      On 31 January 2007, the appellant was found guilty by a jury of one count of rape  and  four  counts  of  sexual  violation  by  unlawful  sexual  connection  (two involving  oral   sex   and   the   other   two   involving  digital   penetration   of   the complainant’s vagina and anus).

[4]      All of the charges related to a single event.  After a night of heavy drinking, the appellant was invited to stay at the home of a workmate and his partner.  When the workmate fell asleep in the lounge, the appellant entered his partner’s bedroom and got into bed.   Believing him to be her partner, the victim responded to the appellant’s advances.   During the course of sexual activity the victim suffered extensive bruising, abrasions and lacerations to her vagina and anus.  The offending ceased when the victim’s partner awoke, confronted the appellant and chased him out onto the street.

[5]      The appellant’s defence at trial was that the sexual activity was consensual. He gave evidence that he thought the victim had been flirting with him, and that she was eager to have sex with him.  A psychiatric report showed that the appellant had difficulty in interpreting social interaction, and chronic shyness.   He had only one previous conviction, relating to driving with excess breath alcohol.

[6]      The  sentencing  Judge  (Judge  P  J  Butler,  who  had  been  the  trial  Judge) accepted that the guilty verdicts were probably based on the jury’s decision that the appellant’s belief in the complainant’s consent was not reasonable.

[7]      The Judge adopted a starting point of eight years’ imprisonment for rape, including aggravating factors, and discounted the sentence by one year for the mitigating personal circumstances.   The aggravating factors were the physical and emotional harm to the victim and the appellant’s abuse of her trust after being invited into her home as a guest.   The mitigating factors were the absence of relevant previous convictions and the appellant’s history of social isolation, anxiety, and chronic shyness.

Issues

[8]      In submitting that the sentence was manifestly excessive, counsel for the appellant alleged that, in particular, the Judge failed to have sufficient regard to:

(a)       The appellant’s personal circumstances;

(b)      The particular circumstances of the offending;

(c)      The  desirability  of  consistency  of  sentencing  with  similar offenders committing similar offences.

Submissions

Personal circumstances and circumstances of the offending

[9]      Mr  Stevens  submitted  that,  in  the  circumstances  of  the  offending,  the appellant’s personal circumstances required greater recognition than the Judge afforded them.

[10]     In particular, the Judge should, it is said, have given more weight to the psychologist’s report.  Counsel submitted that the limited social intelligence of the appellant may well account for his actions, and claimed that the sentencing Judge implicitly accepted that the appellant did have a genuine belief in consent.

[11]     Mr Stevens went on to submit that the Judge should have  given  greater recognition to the appellant’s belief that the victim was consenting, particularly after she had initially responded to him in the belief that he was her partner.  In addition, there were no separate acts of violence by the appellant, nor any question of his continuing against the victim’s wishes.

[12]     Ms Edwards for the Crown submitted in reply that, even if the Judge did accept that the appellant genuinely believed that the victim was  consenting, his concern was with the unreasonableness of that belief.   The appellant’s belief may have been partly a consequence of the appellant’s limited social abilities, but it was also the result of intoxication, which cannot be a mitigating factor.

[13]     Ms Edwards contended that, given the aggravating features of the case, a higher starting point would have been permissible.   The Judge’s decision not to adopt a higher starting point reflected an allowance for the appellant’s personal circumstances.   There was arguably an element of “double counting” in that the Judge adopted a lower starting point, despite aggravating factors, and then afforded a specific reduction for the appellant’s social and intellectual difficulties.

[14]     Counsel also pointed out that s 85(4) of the Sentencing Act 2002 requires that the sentence imposed for the lead offence reflect the totality of the offending.  The starting point at eight years could be viewed as lenient, given the aggravating effect of the other offences.

Consistency

[15]     By reference to the following authorities, counsel for the appellant submitted that the sentence imposed was not consistent with sentencing levels of similar offenders committing similar offences.

[16]     In R v Luau CA245/03 25 February 2004 the appellant was convicted of rape and sentenced to six and a half years’ imprisonment.  The appellant had set out to deceive the victim into thinking he was a person with whom she had had consensual sex, and did not desist when she protested.   The appeal against sentence was dismissed.

[17]     In R v Hope CA215/01 30 October 2001, the appellant was convicted of rape and sentenced to six year’s imprisonment.  The appellant had pretended he was the victim’s partner, and she did not realise her mistake until after intercourse.   The appeal against sentence was dismissed.

[18]     Mr Stevens submitted that the appellant was less culpable than the offenders in Luau and Hope because he genuinely believed that the victim was consenting.  He should therefore have been sentenced to less than six years’ imprisonment.

[19]     In  reply,  Ms  Edwards  submitted  that  the  starting  point  adopted  by  the sentencing Judge is consistent with the following authorities.

[20]     In R v Hill CA94/02 21 October 2002, a Crown appeal against a sentence of three and a half years for a conviction of rape was allowed, and a sentence of six years imposed.  The Court emphasised that the starting point for a contested rape is eight years and that intoxication is not a mitigating factor, nor is sexual offending greatly mitigated by the sudden cessation of offending and expression of regret.

[21]     In R v Keremete CA247/03 23 October 2003, a sentence of eight years was upheld.  Aggravating factors were that the rape occurred in the victim’s own home and bed, that the appellant abused his position as a guest and that the victim was vulnerable because she was in a heavily intoxicated sleep.

[22]     In R v A CA226/03 16 February 2004, a sentence of eight years was upheld. The Court said that the appellant’s belief that the complainant wanted to have sex with him could not be advanced as a mitigating factor.   The Court accepted that, given  the  aggravating  factors  in  that  case  (including  breach  of  trust  and  the

complainant’s intoxicated and unconscious state), a higher sentence would have been justifiable.

[23]     In R v Peke CA38/04 7  September  2004,  the  Court  allowed  the  appeal, reducing the sentence from nine years to eight years on the basis of the appellant’s early guilty plea.  In that case the appellant deceived the victim into thinking he was her partner.

Discussion

Personal circumstances and circumstances of the offending

[24]     Even if the appellant genuinely believed that the complainant was consenting, the jury was entitled to find that his belief was not a reasonable one.

[25]     We agree with Ms Edwards that, even though the offences other than the lead charge of rape formed part of a single set of offending, they would have justified the Judge in taking a higher starting point than eight years.

[26]     Although the reduction of one year for the appellant’s social limitations can, we  think,  be  seen  as  modest,  the  final  effective  sentence  of  seven  years’ imprisonment cannot be said to be manifestly excessive.

[27]     More particularly, the justification for a higher starting point than eight years means that the effective reduction was substantially greater than one year.

Consistency

[28]     Our conclusion that the sentence was not manifestly excessive is reinforced by our consideration of the authorities cited to us.

[29]     Although all previous decisions are to a greater or lesser extent fact specific, the pattern which emerges from them is that the starting point on a single count of rape is eight years, and an unreasonable belief in consent and the intoxication of the accused are not mitigating factors.

[30]     Even if the authorities relied on by Mr Stevens are looked at in isolation, a sentence of seven years for the total offending of the appellant could not be said to be manifestly excessive, even after allowing for his personal circumstances.

Result

[31]     The appeal against sentence is dismissed.

Solicitors:

Crown Law, Wellington