Rogers v Police
[2016] NZHC 2574
•27 October 2016
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2016-454-26 [2016] NZHC 2574
BETWEEN ISAAC DAVID ROGERS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 21 October 2016 Appearances:
F D Steedman for Appellant
K A Courteney for RespondentJudgment:
27 October 2016
JUDGMENT OF CLARK J
[1] On 15 April 2016 Mr Rogers was sentenced1 after pleading guilty to two charges of sexual violation by rape.2 He now appeals his sentence of five years imprisonment.
Facts
[2] The appellant met the victim via an online dating application, Tinder. They spent the day together on 25 January 2016 and returned to the victim’s home. Both were drinking and became intoxicated. The appellant and the victim had consensual sex in the victim’s bedroom before both falling asleep. The victim put on pyjama pants and a top before going to sleep.
[3] The appellant woke in the night and began kissing the victim’s neck and breasts. He removed her pants and raped her. The victim was heavily asleep and remained asleep. After a time the appellant again raped the victim. She awoke this
time and told the appellant to stop and leave.
1 R v Rogers [2016] NZDC 6615.
2 Crimes Act 1961, ss 128 and 128B (maximum sentence: 20 years imprisonment).
ROGERS v NEW ZEALAND POLICE [2016] NZHC 2574 [27 October 2016]
[4] The appellant left. In a text communication before sunrise the victim told the appellant that she was going to the police. The appellant apologised and said he would hand himself in to the police. He promptly did so at approximately 6:45am. The appellant gave an evidential interview lasting almost an hour following which he was charged with two counts of sexual violation by rape. Guilty pleas were entered on 9 February 2016.
[5] The appellant and the victim participated in a restorative justice process.
District Court decision
[6] Having set out in some detail the circumstances in which the two rapes occurred the Judge turned to the guideline judgment of the Court of Appeal in R v AM (CA27/2009).3 The Judge accepted the submission from counsel for the appellant, Mr Steedman, that the offending was within band one but considered the offending was appropriately placed towards the upper end of that band. Band one offending attracts a starting point between six and eight years imprisonment. The
Judge adopted a starting point of seven years and six months emphasising three
factors bearing on the appellant’s culpability:
(a) the severe emotional harm to the victim from the offending; (b) the fact there were two rapes; and
(c) the vulnerability of the victim who was asleep and heavily intoxicated.
[7] The consensual sexual activity earlier in the evening was relevant to the question of premeditation which the Judge did not find apparent to any significant degree.
[8] A discount of 10 months was allowed for previous good character, remorse, participation in restorative justice and willingness to undertake psychological
3 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
treatment. A full discount of 25 per cent was allowed in recognition of the early guilty pleas. The end result was a sentence of five years imprisonment.
The appeal
[9] The thrust of the appellant’s position is that the starting point was too high. Mr Steedman submitted a six year starting point was appropriate considering the appellant’s remorse and the steps he took to “put things right in the remarkable way he did”. Applying a reduction of 12 months for those steps and his remorse and with a further discount for his early guilty pleas an appropriate end sentence would be three years and nine months.
[10] Mr Steedman explained that when the appellant was sentenced Mr Steedman had been unaware of the complainant’s interview. Having now read the transcripts of both interviews Mr Steedman submitted he would have advised his client differently. Mr Steedman urged me to read particular pages of the transcripts because they demonstrated the appellant did have a belief in consent although there was no reasonable basis for that belief. Mr Steedman submitted in the District Court, and on appeal, that this would be an appropriate basis for sentencing.
[11] The Crown’s position is that the answers the appellant gave to police show he did not have a genuine belief in consent. If he held an intoxicated belief that is not a mitigating factor. The discounts given were appropriate and the end sentence was not manifestly excessive.
Analysis
[12] I must allow the appeal if I am satisfied that there is an error in the sentence and that a different sentence should be imposed.4 The sentence must be manifestly excessive or wrong in principle before the Court will interfere.5 For the following
reasons, I am satisfied the appeal must be dismissed.
4 Criminal Procedure Act 2011, s 250.
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [31]–[33].
[13] I do not accept that the evidence supports the appellant’s claim that he had a
genuine belief in consent.
[14] At the point in the interview where the appellant begins to narrate the single instance of consensual sex followed by his activities when he woke up after they “went to sleep for a bit” the appellant suggests he thought the complainant was awake. But in the next breath almost he acknowledges she “woke up as I was finishing” then they went back to sleep and he “started up again” not realising “that she was asleep again”. Considered in the light of these explanations I regard the asserted belief in consent as implausible.
[15] Later in the interview when it was put to the appellant that he knew the victim was asleep, he responded “I must’ve”. When asked why he persisted despite the knowledge that the victim was asleep, the appellant said:
I don’t know. I guess I thought I had more control over my sexual addiction
then I actually did.
[16] When asked why he did not attempt to wake the complainant he replied that he did not know. At the end of the interview it is put to him that he knew what he was doing was wrong. The transcript records that he nodded.
[17] Mr Steedman’s strong advocacy on behalf of the appellant cannot overcome the evidence from the appellant himself as to his state of mind and knowledge when he had sex with the complainant who was manifestly asleep which the appellant admitted he knew at the time. Later in the interview when asked if someone “can consent to sex when they’re asleep” he answered “no”. The summary of facts to which the appellant pleaded guilty is wholly consistent with the evidence that establishes the complainant was asleep when the appellant began kissing her prior to and during the rapes, and that the appellant did not have a genuine belief to the contrary.
[18] The appeal does not succeed on this ground. It is accordingly not necessary to analyse the Crown’s submissions relating to intoxicated belief or Mr Steedman’s analysis of the transcript of the victim’s interview (which I have also read).
[19] As to the sentencing itself, in R v AM (CA27/2009) the Court of Appeal accepted that in some circumstances the fact of previous sexual contact that was close in time to the offending could affect culpability but it was unlikely to have much impact in many cases.6 Mr Steedman’s point was that the sentencing Judge did not give adequate weight to the fact of previous consensual sexual activity.
[20] It is clear from the Judge’s decision that the earlier consensual activity was a factor in setting the starting point. It correlated with a lack of premeditation. But that did not detract from the fact the appellant raped his victim twice.7
[21] The appellant does not otherwise take issue with the starting point. While it may have been open to the Judge to give greater discounts for remorse and other mitigating factors that she identified the fact she did not do so does not amount to error.
Result
[22] The appeal is dismissed.
Karen Clark J
Solicitors:
Crown Law Office, Wellington for Respondent
6 R v AM (CA27/2009), above n 3, at [54]–[60].
7 At [19]–[20].
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