R v AM

• Jurisdiction: New Zealand
• Judge: Ellen France J,William Young P
• Judgment Date: 31 March 2010
• Neutral Citation: [2010] NZCA 114
• Court: Court of Appeal
• Docket Number: CA27/2009
• Date: 31 March 2010

BETWEEN

The Queen

Appellant

and

AM (CA27/2009)

Respondent

and

BETWEEN

AM (CA32/2009)

Appellant

and

The Queen

Respondent

[2010] NZCA 114

Court:

William Young P, Chambers, O'Regan, Robertson and Ellen France JJ

CA27/2009

CA32/2009

IN THE COURT OF APPEAL OF NEW ZEALAND

Counsel:

R M Lithgow QC and L Scott for AM

D B Collins QC, S B Edwards and J Murdoch for Crown

H M Aikman QC as counsel assisting the Court

• A AM's appeal against sentence is dismissed.

• B Leave to appeal is granted to the Solicitor-General and the Solicitor- General's appeal against the failure to impose a minimum period of imprisonment is allowed. A minimum period of seven years and six months imprisonment is imposed.

• C This case may be cited as R v AM .

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by William Young P and Ellen France J)

Table of Contents

	Para No
Sentencing for sexual offending	[1]
The role of this Court in setting tariffs	[6]
Statutory sentencing guidelines	[17]
R v A	[21]
Problems with R v A	[27]
New guidelines for rape and sexual violation by unlawful sexualconnection	[29]
Culpability assessment factors	[34]
Planning and premeditation	[37]
Violence, detention and home invasion	[38]
Vulnerability of victim	[42]
Harm to the victim	[44]
Multiple offenders	[45]
Scale of offending	[47]
Breach of trust	[50]
Hate crime	[51]
Degree of violation	[52]
Mistaken belief in consent	[53]
Consensual sexual activity immediately before the offending	[54]
Offending against person with whom offender is in or has been in a relationship	[61]
The views of the victim	[62]
The proposed bands	[65]
The bands for sexual violation where the lead offence is rape, penile penetration of the mouth or anus or violation involving objects (the rape bands)	[88]
Rape band one: 6-8 years	[93]
Rape band two: 7-13 years	[98]
Rape band three: 12-18 years	[105]
Rape band four: 16-20 years	[108]
The bands for other violation where unlawful sexual connection is the lead offence (the USC bands)	[113]
USC band one: 2-5 years	[114]
USC band two: 4-10 years	[117]
USC band three: 9-18 years	[120]
Starting date for application of the guidelines	[125]
The case at hand	[128]
Overview	[128]
The facts in more detail	[131]
The criminal process	136]
Impact on the victims	[140]
AM	[141]
The sentencing remarks	[146]
The issues on appeal	[148]
Disposition	[160]

Sentencing for sexual offending

1 Sentencing for rape is currently based around what was said by this Court in R v A1 even though that case, in some respects, has been overtaken by emerging evidence about, and evolving social attitudes to, rape 2 and gives little assistance in cases where the culpability of the offender is particularly high. As well, the structure of the guidance provided by R v A is now out of step with present sentencing methodology. An associated problem is that there are currently no guideline judgments of this Court in relation to sexual violation by unlawful sexual connection.

2 We are satisfied that the time has now come for this Court to give integrated sentencing guidance for offending involving sexual violation and, as part of this exercise, to review and update the R v A approach in relation to rape. We have

chosen to do so in the context of the present appeal which demonstrates some of the difficulties which have developed with sentencing in this area.

3 In the minute which was sent to counsel before the hearing we indicated our intention to set out guidelines not only for rape and other forms of sexual violation, but also indecent assault and inducing a child to do an indecent act on a defendant. In fact, we have dealt with only rape and other forms of sexual violation. There are a number of reasons for this. The submissions we received focused on rape and sexual violation and we did not receive much assistance in relation to indecency offending. The number of cases coming to this Court where the lead offence is an indecency offence is comparatively small and we do not have a great deal of experience of sentencing in this area to draw on. In addition, the importance of the offender's previous record in setting starting points in indecency cases means that a different approach to sentencing methodology from that adopted in relation to rape and sexual violation may be appropriate in indecency cases. We intend to deal with sentencing guidelines for indecency offending at a later date.

4 In subsequent sections of this judgment we discuss:

• (a) The role of this Court in setting tariffs;

• (b) Statutory sentencing guidelines;

• (c) R v A;

• (d) The problems with R v A;

• (e) New guidelines for rape and other sexual offending; and

• (f) The case at hand.

5 Two sets of guidelines are provided. The first of the guidelines is for sexual violation where the lead offence is rape, penile penetration of the mouth or anus or violation involving objects. The second of the guidelines is for other violation where unlawful sexual connection is the lead offence. To distinguish the two sets of guidelines we call the first set of guidelines the “rape” guidelines and the second set of guidelines the “USC” guidelines. The rape guidelines are found at [88] to [112] and the USC guidelines at [113] to [124].

The role of this Court in setting tariffs

6 Because this judgment is likely to attract some public attention and in order to set the scene for an explanation of why it is now desirable to review R v A, it is necessary to explain briefly the role of this Court in providing sentencing guidance and how that role has evolved in recent years.

7 Andrew Ashworth 3 discusses the history of guideline judgments in England. It was not until the 1970s that the English Court of Appeal began issuing judgments containing general guidelines on sentencing for particular offences. These judgments, pioneered by Lawton LJ, are described by Ashworth as setting out: 4

… general parameters for dealing with several variations of a certain type of offence, considering the main aggravating and mitigating factors, and suggesting an appropriate starting point or range of sentences.

8 The earliest cited instance of a guideline judgment is R v Willis, 5 a case concerning buggery and indecent assault which identified a sentencing bracket of three to five years for cases not presenting any aggravating or mitigating factors which were set out (non-exhaustively) in the judgment. A similar guideline judgment, albeit without a systematic discussion of the main aggravating or mitigating factors, was delivered in R v Taylor, 6 a case concerning unlawful sexual intercourse with a girl under the age of 16.

9 Influenced by English developments, this Court also began to give tariff guidance. In R v Pawa7 and R v Pui8 sentences imposed for rape were reduced to bring them into line with “the existing pattern of sentencing for sexual offences” and this after, in the Pui case, extensive review of sentencing decisions. Then, in

R v Smith9, R v Dutch, 10 and R v Ulrich, 11 there were extensive reviews of sentencing decisions in relation to drug offending. These five cases are the first (or at least amongst the first) New Zealand tariff cases. They are characterised by the assumption that consistency would flow from a proper analysis of sentencing decisions and the reinforcement of existing sentencing patterns.

10 The leading texts on sentencing practice 12 now identify over 50 judgments as “guideline judgments”. 13 Saul Holt, however, argues that, of these judgments, only six qualify as “genuine” guideline judgments: R v A14 (sexual violation by rape); R v Terewi15 (cultivation of cannabis); R v Wallace16 (dealing in Class B Controlled Drugs); R v Mako17 (aggravated robbery); R v Taueki18 (serious violence); and R v Fatu19 (dealing in and manufacturing of methamphetamine). R v Hessell20 (discounts for pleas of guilty) can now be added to this list.

11 Sometimes guideline judgments represent a judicial response to legislative change. For instance, the change in the tariff for rape which emerged from R v A was driven by an increase in the maximum sentence. Taueki resulted in part from dissatisfaction with the limited guidance which had been provided by R v Hereora21 but was also a response to the changes in policy implemented by the Sentencing Act 2002. Fatu was a response to the reclassification of methamphetamine from being a Class B drug to a Class A drug.

12 Other guideline judgments have been issued when the Court has perceived a particular need for guidance. In Wallace sentencing guidelines for commercial dealing in Class B drugs were provided as a response to the increasing size and sophistication of commercial drug operations. Similarly, the judgment in Terewi

revised the previous tariff case, Dutch, to take account of the increasing prevalence of cannabis cultivation and the development of hydroponic cultivation techniques. This revision occurred despite the fact that Parliament had not opted to change the maximum penalty since 1975. In Mako the Court opted to revise its previous guidance on sentencing for aggravated robbery given in R v Moananui. 22 Although Mako noted that “there have been changes in kinds and frequency of criminal conduct involving this offence and in community responses to it”, 23 the key driver of the revision was the need to give more discretion to sentencing judges and refocus the sentencing exercise on a proper assessment of the true culpability and criminality present in...