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R v Accused (2000) 17 CRNZ 300 (CA)

Case summary provided by BROOKERS

Name: R v Accused
Reported: (2000) 17 CRNZ 300
File number: CA518/99
Date: 6 March 2000
Court: Court of Appeal
Location: Wellington
Judge: Tipping, Robertson, Baragwanath JJ
Charge: Includes Sexual Violation - Rape; Sexual Violation - Unlawful Sexual Connection; Detaining a Woman without Consent with Intent to have Sexual Intercourse
CYPFA:
Key Title: Sentencing in the adult Courts - Rape; Sentencing in the adult Courts - Other; Sentencing in the adult Courts - application of Youth Court principles

BROOKERS Summary:

Sentencing - Allowance for youth - Appellant 14 years old - Age one factor relevant to substantial reduction from sentencing starting point - "Callous and depraved" conduct required severe response.

Sentencing - Mitigating factors - Mitigating factors included history of abuse, appellant’s age, negative influence of caregiver, and early guilty plea - Sentencing Judge properly considered these - Substantial reduction from starting point - Appellant’s conduct "callous and depraved", requiring severe response.

The appellant, who was 14 years old, raped a Wellington woman and threatened her with a knife while in the company of his caregiver, a Mongrel Mob member. He pleaded guilty to various charges arising from that incident and was sentenced to 7½ years’ imprisonment (from a starting point of "14 years or more"). He appealed.

[Note: Consistent with the format of the issued judgment, paragraph numbers rather than line numbers are used in this report.]

Held, (1) the starting point of "14 years or more" selected by the sentencing Judge was appropriate. (p 306, para 12)

(2) Mitigating factors raised at the time of sentencing included past physical, emotional, and sexual abuse of the appellant, his age, the caregiver’s negative influence, and a very early guilty plea. The sentencing Judge properly considered these matters, and a lower sentence was not justified. The appellant’s conduct was "callous and depraved", requiring a severe response to mark society’s condemnation of such behaviour and act as a deterrent to others. (p 308, para 18)

R v Robinson 17/3/98, CA404/97 applied

Cases referred to

R v Carter 9/2/94, Penlington J, HC Hamilton S55/93
R v Goodwin 24/3/97, CA505/96
R v Hiroki 3/12/99, HC Wellington S2432/99
R v Jermyn 28/4/97, CA419/96; CA420/96; CA421/96; CA422/96; CA432/96; CA433/96
R v Kiri 26/4/94, CA22/94
R v McMillan 14/10/98, Panckhurst J, HC Christchurch T54/98
R v Mahoni (1998) 15 CRNZ 428 (CA)
R v N [1998] 2 NZLR 272; (1998) 15 CRNZ 481 (CA)
R v Nuku 1/12/98, CA296/98
(2000) 17 CRNZ 300, 301]R v Pairama 8/9/97, CA216/97, noted NZCLD, 5th Series, 1835
R v Robinson 17/3/98, CA404/97
R v Tapuaiga 27/10/99, CA262/99
R v Tucker 1/9/93, CA242/93

Appeal

Appeal against sentence.