E Huda for Appellants S K Barr and K L Kensington for Respondent
Judgment:
19 December 2018 at 11.00 am
JUDGMENT OF THE COURT
AMr Rolleston’s appeal against conviction is dismissed.
B Mr Rolleston’s appeal against sentence is allowed.The sentence of 11 years and two months’ imprisonment is quashed and substituted with a sentence of nine years and 11 months’ imprisonment.
CMr Roche’s appeal against conviction is dismissed.
D Mr Roche’s appeal against sentence is allowed.The sentence of 10 years and nine months’ imprisonment is quashed and substituted with a sentence of nine years and seven months’ imprisonment.
The appellants, Brooke Rolleston and Brandon Roche, were convicted at trial of the rape and sexual violation by unlawful sexual connection of a 15-year-old girl. The trial Judge, Judge Garland, sentenced Mr Rolleston to 11 years and two months’ imprisonment and Mr Roche to 10 years and nine months’ imprisonment.[1] They appeal their convictions on the ground they did not receive a fair trial because of apparent juror bias. They also allege their sentences were manifestly excessive.
Background
[1]R v Rolleston [2017] NZDC 17046 [sentencing notes].
The complainant became very drunk at an unsupervised party she held at her house. While heavily intoxicated, the complainant was observed dancing with and kissing the appellants. The complainant’s boyfriend was concerned about her condition. He was not eased when Mr Rolleston asked him if he would like to “put her on a spit roast” for $20; a suggestion that one would have sexual intercourse with the complainant while she performed oral sex on the other male. The boyfriend declined, pointing out the age of the complainant.
When the boyfriend’s ride arrived to take him home, he attempted to encourage the complainant to leave with him. She would not go, and both Messrs Rolleston and Roche aggressively encouraged the boyfriend to leave. Before he did so, he asked a female friend to put the complainant to bed. After her boyfriend had left, the complainant went to her bedroom and got into bed, where two of her friends were already asleep.
Later, Messrs Rolleston and Roche went into the bedroom. They took hold of the sleeping complainant, lifted her out of bed and carried her out of the room. She was observed as having to be supported in order to walk because she was so intoxicated.
The two men took the complainant to an empty room. There, they removed the complainant’s pants and underwear and placed her in a kneeling position. While one had sexual intercourse with the complainant from behind, the other placed his penis in her mouth. Both men continued to perform these sexual acts…
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.
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Details
AGLC
Rolleston v The Queen [2018] NZCA 611
Case
[2018] NZCA 611
Decision Date
CaseChat Overview and Summary
Brooke Rolleston and Brandon Roche appealed their convictions and sentences for the rape and sexual violation of a 15-year-old girl. They argued that they did not receive a fair trial because of apparent juror bias and that their sentences were manifestly excessive. The Court dismissed the appeal against conviction for both men, finding that there was no basis for alleging juror bias. However, the Court allowed the appeal against sentence, finding that the discounts for the appellants' youth were too modest and that the sentences were manifestly excessive. The Court substituted the sentences with nine years and 11 months’ imprisonment for Rolleston and nine years and seven months’ imprisonment for Roche.