The Queen v Jeremy Ian Hope
[2001] NZCA 258
•30 October 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA215/01 |
THE QUEEN
V
JEREMY IAN HOPE
| Hearing: | 29 October 2001 |
| Coram: | Gault J Gendall J William Young J |
| Appearances: | S J Hembrow for Appellant M N Zarifeh for Respondent |
| Judgment: | 30 October 2001 |
| JUDGMENT OF THE COURT DELIVERED BY GENDALL J |
The appellant was convicted of rape after a jury trial in the District Court at Christchurch on 7 June 2001 and was sentenced to six years imprisonment on 15 June 2001. He appeals against the sentence.
The complainant is a young woman then aged 20 years who, having taken tranquilliser medication, in order to sleep, awoke from a deep sleep in the early hours of the morning of 30 January 2000 to find a man having sexual intercourse with her. He was the appellant, who knew her as he was a close friend of the complainant’s male partner. That man was indeed elsewhere within the city, in bed with another woman, a fact known to the appellant. He went to the complainant’s home and got into her bed because he was angry or aggrieved at his friend’s behaviour. Whilst the complainant was semi-conscious she was penetrated digitally and the appellant proceeded to complete intercourse despite the complainant having awoken during the act. At that point she initially thought the man in her bed was her boyfriend, and raised no objection, but once the act had been completed and she realised that it was the appellant, whom she identified, she was angry, shocked and made immediate complaint.
The appellant was interviewed by the Police but his statement not admitted in evidence having been excluded after a pre-trial argument. The appellant did not give evidence. It is apparent that the defence submissions to the jury were based on the contention that it was reasonably possible to conclude from all the evidence that the appellant believed that the complainant was consenting to the intercourse that was taking place. Of course the Crown’s case is that consent could not be given by a sleeping woman and the complainant’s consent when awake, if given, was obtained through deceit and not a valid consent. The case, however, hinged on whether the appellant had the belief on reasonable grounds that consent existed. The jury’s verdict, once the complainant’s evidence was accepted, was inevitable given that the appellant not only did not give evidence but his explanation given in the Police interview had been excluded.
When sentencing the appellant the Judge referred to the statement made by the appellant to the Police, as being material which enabled him to form a view as to the appellant’s belief that “you knew that she thought that you were her boyfriend”. Whilst reference by a Judge to aggravating matters not admitted in evidence and not accepted by an accused ought not be referred to in sentencing, in the present case the reference to the appellant’s statement was to his advantage. In his statement he said, and the Judge accepted, that he was hoping he might have sex but “did not go round there to rape her”. This enabled, so the Judge said, the Court to conclude that the Home Invasion provisions of the legislation did not arise.
The provisions of s17A(3) of the Crimes Act 1961 as inserted by s2 Crimes (Home Invasion) Amendment Act 1999 would seem to apply so the appellant should have no complaint with the sentencing process as it applied to the appellant. That provides:
“Without limiting the circumstances in which a person may be regarded as being unlawfully in a dwelling house, if a person has entered a dwelling house under an express or implied licence, that licence must be regarded as having been revoked if the person commits [sexual violation by rape] in circumstances that render the person who could revoke that licence unable to ask the other person to leave.”
Here the crime was committed upon the penetration of the complainant whilst asleep. We think the Judge erred in favour of the appellant in the view he took of the legislation but as the point was not taken by the Crown we say no more about it.
The general submission made on the appellant’s behalf was that the sentence was manifestly excessive because there existed both the circumstances of the offence and the particular circumstances of the appellant which required there to be a substantial reduction from the established starting point of eight years imprisonment in fixing the term of six years. The Judge properly referred to the starting point at eight years, but said that he gave as much weight as he could to the appellant’s character and references, and his professed remorse.
Counsel for the appellant submitted that a greater discount was required. It was argued that the offence itself involved no physical force, injury or threats; the victim’s attitude was one of understanding in that she was ambivalent as to a sentence of imprisonment; the appellant was treated as a first offender who had family support, was a successful sportsman, had family and friends who spoke well of him; and he had expressed remorse.
We do not see the fact that extreme force or violence was not used as being a mitigating feature. Where a complainant is asleep extreme force unrelated to the act of penetration is not required. Nor is it required where consent or acquiescence is obtained through deceit or deception. But the act remains one of violation and forceful intrusion of the woman. Whilst there were some features relating to the appellant’s circumstances and history that justified a sentence somewhat lower than eight years starting point, the Judge took these into account. But no allowance could be made for a guilty plea and all that really could be said on behalf of the appellant, apart from his remorse and good character, is that the complainant expressed a view that she did not herself press for the appellant to be imprisoned. But there can be no doubt that she suffered psychologically and emotionally over what had occurred.
The sentence of six years imprisonment gave sufficient allowance for the circumstances of the offending and personal circumstances of the appellant. It was well within the permissible range available to the District Court Judge. It cannot be said to be manifestly excessive and the appeal is accordingly dismissed.
Solicitors
Young Hunter, Christchurch for the Appellant
Crown Solicitor, Christchurch, for the Crown
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