The Queen v Craig Owen Woolley
[2001] NZCA 455
•23 July 2001
IN THE COURT OF APPEAL OF NEW ZEALAND CA02/01
THE QUEEN
V
CRAIG OWEN WOOLLEY
Hearing: 20 June 2001 Coram:
Gault J Robertson J Hammond J
Appearances:
D S G Deacon for the Appellant JM Jelas for the Crown
Judgment:
23 July 2001
JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J
Introduction
[1]This is an appeal against sentence only.
[2]The summary of facts upon which Mr Woolley was sentenced is as follows:
At about 3.30 a.m. on Sunday 15 October 2000 the complainant in this matter was walking west on Armagh Street, Christchurch.
She had left an address in Armagh Street a short time earlier and was upset over an incident which occurred there.
As she was walking on Armagh Street she was befriended by the defendant WOOLLEY.
He offered her a cup of coffee and the comfort of his flat to regain her composure. Unwittingly the complainant took up this offer.
Once inside the flat the defendant attempted to kiss the complainant and reached under her top with his hand.
She repelled his advances, told him she was going to go home, got up, left his flat and then proceeded to leave the boarding house.
As she got to the top of the stairs the defendant grabbed her from behind and pushed her into the upstairs bathroom.
He then placed his hand over her mouth and told her to take her clothes off or he would kill her. The complainant removed her trousers and underclothing and was then pushed to the floor by the defendant.
He then penetrated the complainant’s vagina with his penis, however after a few moments he stopped and stated that he was sorry. The complainant then asked if she could get dressed and leave, to which he agreed.
At no stage in the defendant’s presence did she consent to any sexual contact and made this quite clear from his initial advances towards her.
At about 3.00 p.m. on Sunday 15 October 2000 Police executed a search warrant at the address of Flat 5, 484 Armagh Street and located the defendant hiding behind the door of the spare room with a blanket over him.
When spoken to he admitted the facts as outlined, saying that he was drunk and had messed up.
He was remorseful of his actions.
The defendant is a single man aged 22 years, employed as a Salesman. He has previously appeared.
[3] The appellant first appeared in Court on the 16th of October 2000. He was remanded to the 30th of October at which stage he pleaded guilty and was remanded to the High Court for sentencing on the 16th of November.
[4] The sentencing Judge outlined the factual circumstances. He indicated that at the request of counsel he had viewed the appellant’s video interview from which
he said it was apparent that the appellant was remorseful and realised the situation that he had allowed himself to get in to.
[5]The Judge then said:
You are 22 years of age. Although you have convictions for matters involving dishonesty, they have no bearing on this sentencing. Apart from two convictions in 1996 for threatening to kill, your record does not disclose violence. Drugs and alcohol have clearly been a problem. Perhaps the time has now come where you will have no option but to face that problem.
[6]Having reviewed the submissions of counsel the Judge concluded:
I cannot see any basis on which it would be appropriate to depart from the traditional starting point of eight years but, of course, matters mentioned by Mr Nation should be taken into account in determining the lower sentence that should be imposed. You pleaded guilty. You were co-operative. You have no previous convictions for offences of this nature or indeed for offending involving violence. You came to your senses and withdrew in a relatively short time. But, of course, all of this is against the background that our law expects women to be safe from this type of offending. I also take into account that you have exhibited remorse, although I must say that looking to the future it is difficult to gauge the extent bearing in mind that the probation officer obviously has concerns about your propensity for violence.
[7] The sentencing Judge took an 8 year starting point and allowed a 2 year deduction because the appellant had pleaded guilty, showed remorse, withdrew quickly, co-operated with the Police and had no previous convictions for violence. The effective sentence imposed was 6 years imprisonment.
[8] It is submitted on appeal that the Judge was in error in taking a traditional starting point of 8 years. Mr Deacon argued that such approach was established in a contested rape case R v A [1994] 2 NZLR 129. It was counsel’s submission that because this was not a contested rape case that starting point was irrelevant. We do not agree. That is the starting point after which aggravating and mitigating factors (including a plea of guilty) are taken into account and an appropriate sentence determined.
[9] Here the allowance for an early plea of guilty was an important mitigating factor which would justify a substantial reduction, but we do not accept the
submission that before that and other relevant factors are taken into account, 8 years is not the benchmark from which the exercise commences.
[10] The sentencing Judge noted the submissions which had been advanced. The Crown had said there were four aggravating features:
One, that you took advantage of a person in a vulnerable condition. Two, that you pursued your advances even though they had been clearly rebuffed at an early stage in the flat. Three, that there was violence. Part of the violence alleged by the Crown has already been rejected by me (pushing into the bathroom and on to the floor) but the Crown also mentions that you held your hand over the complainant’s mouth. Finally, you did not wear a condom.
[11]The mitigating factors were recorded thus:
On your behalf Mr Nation encourages me to adopt a starting point below the traditional eight years. He carefully reviewed the circumstances leading to this offending and highlighted that initially this does not seem to have been a situation where you were taking advantage of a woman who was unwilling to go to the flat. Mr Nation has described this as a situation where you underwent a short-lived personality change during this period when you lost control and that when you came to your senses you were apologetic. It was Mr Nation’s submission that in the context of rapes this is at the lower end of the scale and that while the complainant is entitled to every sympathy, her impact report illustrates the type of impact that inevitably arises from rape. He asked me to take into account your remorse, your problem with opiates and alcohol and to approach the matter with the knowledge that your family is still prepared to support you.
[12]Mr Deacon before us took matters further and submitted:
Regrettably, the complainant through her own somewhat foolish actions may well have given the appellant the impression that she was not too unwilling a partner for the following reasons:
(a)She had had previous consensual sex an hour or so earlier and told the appellant that when she met him on the street as she was walking home.
(b)She went with him to his flat which was no more than a bed- sitter.
(c)There were three other people in the bed-sit at that time.
(d)At no stage did she call out to the other persons or in any other way indicate her distress and gave the appearance of being a not unwilling partner.
(e)A minimal amount of force was used, namely the placing of the appellant’s hand over her mouth initially.
(f)At the appellant’s request she took off her own clothes, kissed him and lay down on the floor because “she knew to”.
The appellant was heavily affected by alcohol and it seems that after a minute or so of penetration he suddenly came to his senses and withdrew. He did not ejaculate. He apologised to the complainant, allowed her to dress, and she left.
[13] We reject the argument that the complainant is to be considered as a “not too unwilling a partner”. Mr Woolley pleaded guilty to rape on the basis that the complainant was not consenting and he did not believe on reasonable grounds that she was consenting. There is not a category of “not too unwilling a partner”.
[14] On the basis of the proper 8 year starting point, the sentencing Judge having allowed for all other aggravating and mitigating factors, took the view that a really significant factor was the extraordinarily early plea of guilty. The complainant knew within a month of the event that the legal process would be at an end. In our judgment that called for a very substantial discount. The remorse of this 22-year-old man was recognised and accepted as an additional factor.
[15] A plea of guilty has long been recognised by this Court as ordinarily mitigating culpability and justifying a reduced sentence. In R v Taylor [1968] NZLR 981, 987 this Court quoted with approval the statement of Edmund Davies LJ in R v de Haan [1968] 2 QB 108, 111 when he said that:
[a] confession of guilty should tell in favour of an accused person, for that is clearly in the public interest.
[16] This Court confirmed that recognition of the discount for a plea of guilty in R v Ripia [1985] 1 NZLR 122, 128 where R v Roberts [1982] 1 WLR 133 (CA) and R v Fraser (1982) 4 Cr App R (S) 254 are also cited.
[17] Three reasons for the reduction were expressed in R v Strickland [1989] 3 NZLR 47, 51 by Richardson J (as he then was) as:
[I]t spares the victim the ordeal of giving evidence; it saves the State the time and expense of a defended hearing; and it may be evidence of the offender’s acceptance of responsibility for wrongdoing and contrition.
[18] What that allowance will be will depend on the particular circumstances including the nature of the offences, the strength of the Police case, the likely length of the trial which is obviated, the stage at which the guilty plea is entered and whether the plea is considered by the Court to reflect genuine remorse. In R v Mako [2000] 2 NZLR 170, 176 this Court said that “pleading guilty should attract a meaningful discount” but noted that the Court:
has resisted laying down any specific quantum or proportion for such discount because of the widely varying circumstances in which it might be entered. Generally, however, it is accepted that the earlier the plea the more the discount.
[19] We have undertaken since the hearing of this appeal a survey of sentencings in the High Court this year of persons who have pleaded guilty to offences under s 128 and in the Wellington High Court in the period from 1997 to 2001. Taken overall there has been an average percentage reduction for guilty pleas and other relevant factors of about 27 percent but the range, as is to be anticipated to reflect a variety of circumstances, goes substantially above and below that figure.
[20] It is clear that this case must fall at the highest end of discount because of the extraordinary speed which attended the resolution of the case. The repeat trauma of a victim as a result of trial process is a major issue. It is clear that the healing process can only properly begin when people know they no longer have to keep an incident alive in their minds so that they can recount it at a Court hearing.
[21] We are satisfied that insufficient recognition was given to the nature and circumstances of the offending and the earliest possible resolution of this matter which was as a result of the total co-operation of the appellant and his genuine recognition of his short-lived wrongful behaviour.
[22] The appeal is allowed. The term of 6 years’ imprisonment is quashed. A sentence of 5 years’ imprisonment is substituted.
Solicitors
D S G Deacon, Wellington, for the Appellant Crown Solicitor, Wellington, for the Crown
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