THE QUEENvH (CA488/05)

The Court of Appeal of New Zealand was asked to review a sentence imposed by Judge Singh on a respondent convicted of sexual offences against two young girls. The respondent was convicted of one count of digital penetration of a minor and one count of sexual violation by rape against the first complainant, and one representative count of indecent assault against the second complainant. The respondent was sentenced to six and a half years imprisonment for the rape charge, three years for the digital penetration charge, and 15 months for the indecent assault charge, with all terms to be served concurrently. The Solicitor-General sought leave to appeal the sentence, arguing that it was manifestly inadequate and wrong in principle.

The court considered whether the Judge had erred in reducing the starting point for the sentence to six years due to the minimal penetration and brevity of the rape. The court noted that while brevity and minimal penetration may not justify a substantially lower starting point, the decision to set a starting point should depend on the particular circumstances of the case. The court found that the starting point of six years was too low, and that an appropriate starting point should have been nine years considering the totality of the offending. However, the court found that the deduction for mitigating factors was within the Judge's discretion and was not excessive. The court concluded that the sentence, while lenient, was not manifestly inadequate or wrong in principle, and therefore dismissed the appeal by the Solicitor-General against the sentence.

The court's decision highlights the importance of considering the particular circumstances of each case when determining an appropriate starting point for sentencing in cases of sexual offending. The court also emphasized the need to balance the gravity of the offending with the mitigating factors presented in each case, and to exercise caution when overriding the discretion of the sentencing Judge on appeal.