R v Wirangi - [2007] NZCA 25

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 454/06 [2007] NZCA 25

THE QUEEN

v

JACOB JAMES WIRANGI

Hearing: 21 February 2007
Court: William Young P, Randerson and Harrison JJ Counsel: A M Simperingham for Appellant
K Raftery for Respondent

Judgment: 27 February 2007 at 3 pm

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.

BThe minimum period of imprisonment of five years four months is quashed.

R V WIRANGI CA CA 454/06 27 February 2007

REASONS OF THE COURT

(Given by Randerson J)

[1] The appellant was convicted after trial in the District Court before Judge Perkins and a jury on one count of rape. He was sentenced on 7 June 2006 to eight years imprisonment with a minimum term of five years and four months (two-thirds of the eight year sentence).

[2] His appeal against conviction was dismissed by this court on 25 October

2006 (CA228/06) but he has separately appealed against sentence. This approach is undesirable and should not generally be followed. There is no challenge to the eight year term but the minimum period of imprisonment is challenged on the basis it is manifestly excessive.

Facts

[3] At the time of the offending, the complainant was a sixteen year old female student residing at her grandmother’s home. The appellant was a friend of the complainant’s family and was asked to look after the grandmother’s home while she was in hospital. On the evening of 14 December 2004, the appellant, the complainant and her younger cousin were at the grandmother’s property watching video movies. The appellant made sexual advances to the complainant after her cousin had gone to bed. He exposed his penis but she demanded he leave the house. The appellant then changed into her nightwear and went to bed. She was later awoken by the appellant removing her bedclothes. He removed her lower clothing and then raped her. When this was completed he proceeded to masturbate himself in front of the complainant before dressing and leaving the property.

[4] There had been at least two prior occasions when the appellant had propositioned the complainant about sex, the last of which was only two days before the subject offending. On each occasion the complainant had made it clear she did not want to have sexual contact with him.

[5] At trial, the appellant admitted having sexual intercourse with the complainant, but maintained she consented.

The sentencing remarks

[6] The Judge noted the appellant was 38 years of age at the time of sentencing. Although he had some previous convictions, there were none for sexual or violent offending. The Judge recorded that the appellant was well regarded by his employers but that the appellant continued to maintain his innocence and was unwilling to address any problems which might be associated with the offending.

[7] Referring to the victim impact statement, the Judge described the effects on the…

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 Wirangi

Details

AGLC: R v Wirangi [2007] NZCA 25
Case: [2007] NZCA 25
Decision Date: 27 February 2007

CaseChat Overview and Summary

The appellant, Jacob James Wirangi, appealed against his sentence for rape, as imposed by the District Court. The court had sentenced him to eight years of imprisonment, with a minimum term of five years and four months. Wirangi's appeal against his conviction had been previously dismissed by the Court of Appeal. The sole issue before the court was whether the minimum term of imprisonment was manifestly excessive. The appellant's counsel argued that there were no factors justifying a minimum term of imprisonment, and that the eight-year term was sufficient to achieve the statutory purposes. The Crown's counsel submitted that the imposition of a minimum term was justified and the length was appropriate, considering the absence of remorse, the seriousness of the crime, and the need for community protection.

The court examined the statutory provisions and concluded that the District Court had not provided sufficient reasons for imposing a minimum term of imprisonment, other than a recitation of the statutory provisions. The court found that none of the matters considered by the District Court justified the imposition of a minimum term of imprisonment. The court also considered the statutory purposes under s 86(2) and found that the eight-year term and the usual minimum period of imprisonment under s 84(1) Parole Act 2002 were sufficient for those purposes. The court found the sentence to be manifestly excessive, and the appeal was allowed, quashing the minimum period of imprisonment of five years and four months.

The court's decision highlights the importance of providing clear reasons for imposing a minimum term of imprisonment and ensuring that the sentence imposed is not manifestly excessive. The court found that the usual minimum period under s 84(1) Parole Act 2002 was sufficient for the statutory purposes, and that there were no factors justifying a longer minimum term. The court's decision serves as a reminder to sentencing courts to carefully consider the statutory purposes and the factors relevant to imposing a minimum term of imprisonment.

Orders