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The Queen v E , [2007] NZCA 133 [Hammond, Chambers and Arnold JJ]

Name: The Queen v E
Reported: [2007] NZCA 133
File number: CA 362/06
Court: Court of Appeal
Location: Wellington
Date: 18 April 2007
Judge: Hammond, Chambers and Arnold JJ
Charge: Sexual violation – Rape/Oral sex/ Digital Penetration
CYPFA:
Key title: Sentencing in the Adult Courts – Sexual Violation – Digital Penetration
General principles of sentencing

Subject to suppression order s139 Criminal Justice Act 1985

Case Summary
Unsuccessful appeal against sentence by the appellant following the appellant’s guilty plea to two charges of sexual violation when he was a 16 year old High School student. Extension of time within which to bring the appeal granted. At the time of the offending the appellant and the complainant were good friends and were in the same class at school. The appellant, using two cell phones, deceptively blackmailed the complainant. He threatened to ensure that a rape charge was laid by a school girl against the complainant, threatened to damage the complainant’s home and his parents’ property unless the complainant agreed to allow the appellant to perform sexual acts on him.

These sexual acts included masturbating the complainant, digitally penetrating the complainant’s anus and performing oral sex on him. The offending occurred several times a week over several months and ended when the complainant told his parents.

The sentencing Judge in the District Court identified the aggravating features as; the high level of premeditation, the fact that the offending extended over a period of approximately three months, the humiliating and degrading nature of the offending, the significant abuse of trust and the severe consequences of the offending for the complainant.

The identified mitigating features were the guilty pleas and the appellant’s youth. The Judge considered R v Castles CA105/02 23 May 2002 and fixed the appropriate starting point at seven years. Two years was deducted for the appellant’s age and one year and three months for the early guilty pleas. Counsel for the appellant submitted that the Judge erred in fixing a starting point on the basis that the offending had been committed by an adult offender and was too high in any case. It was submitted that the Judge had failed to give sufficient weight to the appellant’s personal circumstances and the need for rehabilitation.

HELD: The first step in identifying a staring point is the culpability inherent in the offending. The personal circumstances of the offender should be considered at the second stage. In this case the Judge would have been justified in fixing a higher starting point to reflect the circumstances of the offending. The seven year starting point was at the lower end of the available range.
The sentencing Judge allowed a deduction of 28.5% for the appellant’s personal circumstances. The offending was not “one off” offending and could not be described as impulsive. The additional reduction for the appellant’s guilty pleas was generous, given that they were not entered at the first opportunity. In the circumstances of the offending and the offender, the outcome was within the range properly available to the Judge.

Decision:
Appeal dismissed. Suppression order to remain in force.

Statutes and regulations referred to
Criminal Justice Act 1985, s139
Cases Referred to
R v Castles CA 105/02 03 23 May 2002
R v Taueki [2005] 3 NZLR 372
R v Hall CA412/95 17 May 2006
R v Mahoni (1998) 15 CRNZ 428