The Queen v Edwin Henry Taylor

[2000] NZCA 247

IN THE COURT OF APPEAL OF NEW ZEALAND CA207/00

THE QUEEN

V

CHRISTOPHER LEO REDDEN

Coram:	Thomas J Blanchard J Tipping J
Judgment: (On the papers)	31 August 2000

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

1. The appellant, Mr Redden, was convicted in the District Court at Christchurch on one charge of sexual violation by rape; three charges of sexual violation by unlawful sexual connection, and one charge of indecent assault. He was sentenced to 10 years imprisonment.  He now appeals against that sentence.

2. The appellant applied for legal aid in respect of this appeal.  The Registrar declined the application after the necessary consultation pursuant to s15 of the Legal Services Act 1991.  The appeal has, therefore, been determined on the basis of written submissions.

3. Mr Redden engaged in sexual activity with his 16 year old mentally handicapped stepdaughter over a period of 7 months.  The expert evidence given in the case established that she had a mental age between 7 and 8 years.  Mr Redden had been her stepfather for approximately five years and was therefore aware of her extraordinary mental limitations.  Accordingly. the jury rejected the defence of a reasonable belief that she consented to the sexual activity.  As the charges show, the sexual activity itself was wide ranging and extended as far as full sexual intercourse.

4. In his written submissions Mr Redden argues that the sentence is excessive considering the sexual activity was between two consenting adults and involved no violence or threats of violence.  Furthermore he argues that the victim instigated some of the sexual activity.  Mr Redden claims that in these circumstances the sentence of 10 years is excessive.  He also makes reference to the sentence handed down to Morgan Fahey as reflecting the disproportionate level of his sentence.

5. The sentencing Judge correctly proceeded upon the basis of the facts as found by the jury.  It is obvious that the jury, by their verdict, rejected any notion of consent by the victim.  Therefore the argument advanced on the basis that the sexual activity was between two consenting adults cannot be accepted.  There was also evidence from the victim of threats by Mr Redden to make her keep the sexual activity a secret, and the Judge was right to accept this evidence for sentencing purposes given the jury’s acceptance of the victim’s evidence on the material matters. The Judge did however give what limited credit he could for the fact that there was no actual physical violence done to the victim. In any case there were other aggravating factors involving the victim’s age and the breach of trust to justify the sentence imposed.

6. Sentencing involves the exercise of a discretion by the Judge and relates to the facts and circumstances particular to each case. In this context the sentence imposed on Dr Fahey in very different circumstances is not useful for the purposes of comparison.  The starting point for this type of offending is 8 years and the aggravating factors set out by the Judge readily justify the final sentence of 10 years.  In these circumstances the sentence can not be said to be manifestly excessive.  Accordingly the appeal is dismissed.