A v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeGlazebrook J
Judgment Date23 March 2016
Neutral Citation[2016] NZSC 31
Date23 March 2016
Docket NumberSC 106/2015

[2016] NZSC 31



Elias CJ, William Young, Glazebrook, Arnold and O'Regan JJ

SC 106/2015

A (SC 106/2015)
The Queen

R M Lithgow QC for Applicant

M J Lillico for Respondent

Application for a recall of judgment dismissing an application for leave to appeal on the basis that two of the three-member Supreme Court panel had also sat on the decision of the Court of Appeal (CA) that the applicant wished to challenge — the applicant said that he wished to challenge the sentencing guidelines in R v AM insofar as they related to the treatment of intra-familial sexual abuse — applicant had been convicted of multiple offences against family members and sentenced to 18 years — whether a recusal application should have been made at the time the application for leave to appeal was filed — whether the intention to challenge a sentencing guideline decision should have been raised in the CA — whether the sentencing guidelines in R v AM for intra-familial sexual offending were too rigid.

Held: The recusal application should have been made at the time the application for leave to appeal was filed. Counsel knew that A wished to challenge R v AM and knew (it being a matter of public record) that three of the five SC judges had sat on that case. The application should have asked that those judges not be assigned to decide the leave application and set out the reasons why that request was being made. Had this been done, the matter would have been dealt with in accordance with the Supreme Court's Conflict of Interest Protocol.

Recall applications would normally be dealt with by the panel which decided the application. Where the recall application was made on the basis that a judge who decided the application should have recused him or herself, this might not always be appropriate. The Protocol did not deal with this situation.

In this case, however, the matters raised related to the ordinary court work of the relevant judges while they were on the CA. There would therefore have been no issue with the recall application being dealt with by the original panel. As this application raised issues relating to recusal that might arise in other cases, however, the whole Court dealt with the recall application.

Where an appellant wished to challenge a sentencing guideline judgment or aspects of it (rather than its application in the individual circumstances), the Court would normally expect that to be signalled in the CA so that, when an application for leave was made, the SC would have the benefit of the CA's view on the matters sought to be raised.

There was no doubt that it would not be appropriate for a judge to sit on an appeal from one of his or her own decisions. Here, however, what was being asserted was that William Young and O'Regan JJ should not have been on the panel which decided “A's” application because of their earlier involvement in a different case involving different parties. A judge's involvement in a case involving different parties, but similar issues to those arising in another case, did not preclude that judge sitting on the basis of a reasonable apprehension of prejudgment. This applied even where the court was being asked to depart from the principles or approach outlined in the previous case.

The doctrine of precedent meant that judges were required to be influenced by earlier decisions, including their own. This, by itself, did not constitute grounds for alleging the appearance of prejudgment.

Judges were also asked at times to overrule or reconsider earlier cases (where the doctrine of precedent allowed). They would do so in light of the submissions made in and the circumstances of the particular case in front of them. The effect of “A's” contention was that judges who sat on an earlier case could never sit on a subsequent case involving the same or similar issues where the correctness of the earlier decision was in issue. That position did not accord with case law or with relevant judicial conduct guidelines.

The New Zealand Guidelines for Judicial Conduct recognised that there might be cases where a judge should disqualify him or herself from hearing a case if it concerned a matter on which a judge had made public statements of firm opinion. This could include expressions of opinion in an earlier case or in an earlier stage of a proceedings, However, the “expression of opinion would have had to have been extreme and unbalanced before a reasonable observer would think the judge not able to have an open mind.

Even had the Court considered it appropriate to recall the judgment, it would not have granted the application for leave. Not all “intra-familial sexual abuse” was placed in band four. Band four was said in R v AM to apply to cases where the lead offence was one engaging the rape guidelines and which involved the same sorts of factors that placed offending at the higher end of rape band three. The offending in band four was, however, likely to involve multiple offending over a considerable period of time rather than single instances of rape. Repeated rapes of one or more family members over a period of years was said to be a “paradigm-case” of this type of offending, particularly where the offending involved children and teenagers ( R v AM).

Rape band three included cases where there were two or more of the factors increasing culpability to a high degree or more than three of those culpability factors to a moderate degree. “A's” offending engaged at least four of those factors. In addition, the offending involved multiple victims, all children and teenagers (one very young) and was over a long period.

This case therefore would not be an appropriate case to reconsider the approach to intra-familial sexual abuse in R v AM, even if it were arguable that such reconsideration was warranted. There was flexibility built into the approach in R v AM. It was made clear that the rape guidelines applied to set a starting point only. Individual family circumstances could be taken into account when considering the personal mitigating circumstances of an offender. The position therefore did not have the rigidity asserted by “A”.

Further, “A's” sentence was 18 years. In the CA counsel submitted that his sentence should have been 15 years but accepted that the sentence could legitimately have been 17 years. Thus, even on the approach “A” wished to submit should have been followed, the sentence might not have been significantly different from the one imposed.

Application for recall dismissed.


The application for recall is dismissed.


(Given by Glazebrook J)


On 17 December 2015 this Court (William Young, Glazebrook and O'Regan JJ) dismissed Mr A's application for leave to appeal to this Court against his conviction and sentence on a series of sexual offences against members of his family. 1


Mr A applies for a recall of the judgment on the basis that two of the three-member panel who dismissed the leave decision also sat on the Court of Appeal's decision in R v AM. 2 Mr A says that his application challenged the sentencing guidelines in that judgment insofar as they relate to the treatment of intra-familial sexual abuse. Mr A also says that he wishes this Court to consider issues relating to the underlying process behind R v AM, including reliance on the work for the proposed Sentencing Council.


Before dealing with the issue of whether the judges should have recused themselves, we will set out the nature and extent of Mr A's offending and summarise the main features of R v AM. Then we deal with some process issues.

The offending

Mr A's most serious offending was against his daughter, including a representative count of indecent assault, a representative rape count and various other counts of sexual violation. This offending started when she was five years old, with the first rape occurring when she was eight years old. There were convictions on further charges when she was 19, including one count of rape.


Mr A was also convicted on a count of penetrative anal sex against his younger brother, who was 14 at the time of the offending. The third victim was his 17 year old niece. In that case, there were convictions on two separate counts of indecent assault and one of attempted sexual connection.


Mr A was sentenced to 18 years imprisonment. The sentencing judge identified, 3 among the aggravating features of the offending, violence and threat of violence, vulnerability of the victims and breach of trust, particularly in relation to his daughter “who was entitled to look to [Mr A] for love and support and safety rather than being a victim of [Mr A's] sexual violence”. 4 He also outlined the profound effect the offending had on the daughter and younger brother. 5

The approach in R v AM


The judgment in R v AM is designed to provide guidance for judges in sentencing for sexual violation. The approach taken is to set out overlapping sentencing “bands” which identify ranges of starting points reflecting the intrinsic seriousness of the offending. Any sentence is then adjusted up or down to reflect circumstances personal to the offender. 6 The Court of Appeal noted that this structured sentencing approach is now embedded in New Zealand's sentencing practice and that it promotes consistency and transparency in sentencing in conformity with s 8(e) (consistency) and s 31 (the duty to give reasons) of the Sentencing Act 2002. 7


Two sets of bands are contained in R v AM: the first set applies where the lead offence is rape, penile penetration of the mouth or anus or...

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