Fetuao v National Prosecution Office [2016] WSCA 10 (2 September 2016)

IN THE COURT OF APPEAL OF SAMOA
Fetuao v National Prosecution Office [2016] WSCA 10

Case name:	Fetuao v National Prosecution Office
Citation:	[2016] WSCA 10
Decision date:	2 September 2016
Parties:	Evan Foaimonuuese Fetuao and Faatafa Wikiteoi (appellants) and National Prosecution office (respondent)
Hearing date(s):	29 August 2016
File number(s):	CA11/15, CA10/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Honourable Justice Fisher Honourable Justice Blanchard Honourable Justice Panckhurst
On appeal from:	Supreme Court
Order:	Appeal against conviction - By a considerable margin we are not satisfied that the rape verdicts are unreasonable. Appeal against sentence - We allow the appeal and substitute concurrent 12 year sentences on each of the rape charges. Otherwise, the concurrent sentences remain as imposed. Faatafa’s sentence of 11 years imprisonment was arrived at from a starting point of 18 years for the rape he committed at the time of the second incident. Reductions totalling 5 years identical to those in Evan’s case were allowed, plus a further 2 year reduction for his plea of guilty. Faatafa was a student, aged 19 years, at the relevant time. In large measure the above discussion applies equally to this appellant. The same aggravating features exist, save that the scale of offending is less, there being only one conviction for rape. We consider the appropriate starting point was 15 years which results in an end sentence of 8 years imprisonment. We allow the appeal and reduce the rape sentence accordingly. In both cases time spent in custody is to be deducted.
Representation:	T Leavai for the appellants M Lui for the respondent
Catchwords:	Starting point for sentencing - multiple charges of rape
Words and phrases:
Legislation cited:
Cases cited:	Muaiava Ufi v Attorney General [2009] WSCA 13. Owen v R [2008] 1NZLR 37 Peti Key v Police [2013] WSCA 3 R v AM
Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

CA 11/15, CA10/15

BETWEEN

EVAN FOAIMONUUESE FETUAO and FAATAFA WIKITEOI
Appellants

AND:

NATIONAL PROSECUTION OFFICE
Respondent

Court:
Honourable Justice Fisher
Honourable Justice Blanchard
Honourable Justice Panckhurst
Hearing: 29 August 2016
Counsel:
T Leavai for the appellants
M Lui for the respondent
Judgment: 2 September 2016

JUDGMENT OF THE COURT

Scope of the Appeals

[1] These two appeals arise from events that occurred on Saturday 15 May 2015 at Falefa. The complainant, a young woman then aged 18 years, was set upon by a group of young men of a similar age. Multiple charges of rape, sexual violation, attempted sexual violation and indecent assault resulted. At a trial before Justice Vaai and assessors four of a group of seven young men denied charges laid against them as both principal offenders, and as parties to the offending of others.

[2] Evan Foaimonuuese Fetuao (Evan) denied two charges of rape and one of indecent assault as well as multiple charges of being a party to crimes committed by others in the group. He was convicted and sentenced to 15 years imprisonment. He appeals against both conviction and sentence. Faatafa Wikiteoi (Faatafa) pleaded guilty to one charge of rape. His appeal is against a sentence of 11 years imprisonment imposed by Vaai J at the time he sentenced Evan and two of his co-defendants who were found guilty at trial.

[3] We shall consider Evan’s conviction appeal first and then jointly consider the two sentence appeals.

The prosecution case

[4] The offending occurred in the context of a 21^st birthday party, for someone referred to as AJ at the trial. Numerous people, including the defendants, were invited to the party. Food and drink, predominantly vodka, was served throughout the day.

[5] The complainant consumed several shots of vodka and soda and became heavily intoxicated. Late afternoon she asked Evan and another young man whom we will refer to as Fagaesea to take her home. Instead of taking her to the road in front of the fale where the party was held they took her to the bedroom in a house towards the rear of the property. There, after some initial advances, she was raped first by Evan while Fagaesea held her down, and then by Fagaesea while Evan restrained her. At one point vodka was poured into the complainant’s mouth.

[6] These events, termed at trial the first incident, were observed by an eye witness named Atafu. He watched the incident through a bedroom window. The prosecution case to this point depended largely on his evidence.

[7] The conviction appeal represents a challenge to Atafu’s account and reliance upon Evan’s evidence in which he denied involvement in any conduct other than some initial kissing and touching. In addition Fagaesea, who had already pleaded guilty to rape, gave evidence for the defence at trial. He said he was not with Evan when the complainant first entered the bedroom. Rather he, and another defendant named Faatafa, were next door looking through a hole in the wall. They saw Evan kissing the complainant while both were standing, and then Evan left the room. A short time later he, Fagaesea, and Faatafa went into the bedroom and each raped the complainant while the other held her down.

[8] The so-called second incident occurred a short time later after word had spread to other young men at the party concerning what was afoot in the bedroom. The prosecution case on this aspect hinged largely on the evidence of another eye witness, Steve. He was going to the bathroom when one of the defendants, named David, alerted him to what was happening in the bedroom. Steve heard a stifled scream. Three times he knocked on the bedroom door. Eventually David opened it. He entered and saw Faatafa having intercourse with the comatose complainant who was lying on top of a desk. Evan then pushed Faatafa off and began to have intercourse himself. He was interrupted by another defendant who was intent on having intercourse with the complainant, while other defendants were violating her digitally and by placing their penis in her mouth. When the defendant who pushed aside Evan attempted to have intercourse. Steve intervened and prevented this from occurring. This evoked a response from others, culminating in shouting and more pushing. Steve told the group to stop, and they complied and left the room.

[9] Again Evan’s conviction appeal involves a challenge to the prosecution’s eye witness evidence, and reliance upon trial evidence he gave. He said that he was in the bedroom towards the end of the second incident when Faatafa raped the complainant and another defendant, Manatua, was about to do so. However, he maintained it was AJ, whose birthday was being celebrated, who intervened, put a stop to the group activity and assisted the complainant to leave the bedroom, not the prosecution witness Steve.

The basis of the conviction appeal

[10] There are two aspects to the conviction argument. The first is that the verdicts of the assessors should be set aside as they are unreasonable. The second is that the trial judge erred in that he did not adequately put the defence in the course of his summing up. Although the two grounds are interrelated, they raise different issues and must be considered separately.

Were the verdicts unreasonable?

[11] The test to be applied was explained by the New Zealand Supreme Court in Owen v R [2008] 1NZLR 37 as:

“A verdict will be unreasonable if, having considered all of the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.”

This Court approved and adopted this test in Muaiava Ufi v Attorney General [2009] WSCA 13. It is to be applied with certain considerations in mind. Under the Samoan judicial system the body ordinarily charged with finding the facts of a case is the assessors. This Court performs a review function. It should not lightly intervene, and must give due weight to the advantages enjoyed by the assessors, including that they see and hear the witnesses in person and have a lifetime appreciation of Samoan people and their ways. We must also bear in mind that reasonable minds may differ on matters of fact.

[12] A related concept also contained in s.104N (1)(a) of the Criminal Procedure Act 1972 is a verdict that “cannot be supported having regard to the evidence”. This ground of appeal only applies where there is no evidence to support the assessors’ verdict, or more likely no evidence to support an element of the charge which the assessors have found to be established beyond reasonable doubt. Rightly in our view Ms Leavai accepted that in this case the eye witnesses did provide evidence capable of supporting the two rape charges.

[13] It follows that to succeed the appellant must demonstrate that the prosecution case, particularly the evidence of Atafu and Steve, suffered from defects of such a nature that when weighed alongside the defence evidence the assessors could not reasonably have been satisfied of Evan’s guilt on the rape charges. This demonstrates the difficulty counsel faced given that the verdicts in this case depend on an assessment of witness credibility. Clearly the assessors must have accepted the eye witness accounts and rejected the evidence of the accused and other defence witnesses.

[14] Regardless, we have scrutinised all the evidence and with particular reference to the points raised and emphasised by Ms Leavai. By a considerable margin we are not satisfied that the rape verdicts are unreasonable. We can explain our reasons for this conclusion quite succinctly.

[15] The first matter is some evidence given by the complainant. She was so intoxicated that she had virtually no recollection of the crucial events. One thing she could say was that her final recollection was of waking up, finding Evan on top of her and attempting to push him away before she lapsed back into a state of unconsciousness. This evidence is inconsistent with Evan’s evidence. He claimed that the only physical contact he had with the complainant was consensual and occurred when they were both standing up.

[16] Counsel challenged the evidence of Atafu on the basis his view through the bedroom window would not have been good and because of an inconsistency. We have viewed photographs of the window taken from both outside and inside the bedroom. The assessors, we note, had a view of the scene in the course of the hearing. We see nothing in this point. The inconsistency concerned Atafu’s statement to the police in which he apparently said he spoke to a woman immediately after the event and was asked what he had been doing, but he did not reply; and that at some point he told the woman to go into the bedroom. She gave evidence that neither of those things were said. Unfortunately, Atafu was not cross-examined on either matter so there is no evidence supportive of an inconsistency. That said, we doubt that differences of this nature would have been influential, had they been properly explored. Both witnesses had been drinking and differences of understanding or recollection of this nature are not surprising.

[17] The witness Steve made two statements to the police, one three days after the event and the second three days later. The second statement was longer than the first and contained a more detailed description of the second incident. Of most consequence Steve named more people, including Evan, as being in the room and described the nature and sequence of their contacts with the complainant. These developments were the subject of numerous questions in Ms Leavai’s cross-examination of Steve. The judge in summing up mentioned this aspect, a matter to which we will refer shortly.

[18] We have closely considered this argument. A number of features are significant. The record shows that Steve maintained his ground under cross-examination. It is also evident that his second statement is consistent with his trial evidence. Ms Leavai submitted that the first statement was closer to the event and therefore more likely to be reliable. Another possibility, however, is that the first statement was simply inadequate, and a second interview elicited more details. The reason for the second interview was not explored at trial, albeit the interviewer may not have been a prosecution witness. What is clear is that this issue was well aired and the assessors were in the best position to assess the credibility and reliability of this witness. It is clear they accepted his evidence. There is no basis to differ from their assessment.

[19] Another criticism of Steve’s evidence was that he was completely at sea in endeavouring to estimate the time taken by the events he witnessed in the bedroom. In cross-examination he acquiesced to a suggestion of one minute. However, in re-examination the judge asked questions designed to show whether Steve understood the difference between seconds and minutes. It became evident he had no or little appreciation of the concept of the passage of time.

[20] Turning to the defence witness Fagaesea some problems emerged in relation to his version that it was Faatafa, not the appellant, who was the first defendant to rape the complainant before he did so. He also was interviewed twice by the police. In neither statement did he refer to watching Evan and the complainant through a hole in the wall, nor did he describe the first incident in terms similar to those he provided at trial. His explanation in cross-examination was:

“I have been sitting and thinking about the sin I have committed and now I am telling the truth”.

Later he added that when interviewed his “mind was restless” and his “statement was given in a hurry”. He conceded that he and Evan were closely related. His credibility was clearly in issue, and we cannot differ from the view that the assessors must have reached given the advantage they enjoyed.

[21] Finally there is the evidence of the appellant. As was to be expected his evidence squared with that of Fagaesea. He too was cross-examined with reference to subtle differences between his account in police statements and that which he gave at trial. He maintained that his only contact with the complainant was consensual, after he took her to the bedroom to smoke a cigarette where she could not be seen by her mother. He asserted that the complainant’s gross state of intoxication only became apparent to him once they were alone in the bedroom. This account raised credibility issues when assessed alongside the prosecution case, including for example why the complainant was not taken home as she requested and why he did not appreciate her gross intoxication at a much earlier point.

[22] Our review of the witness evidence merely emphasises the extent to which this was a credibility case. It also confirms that it would be inappropriate for this Court to intervene and differ from the assessors’ acceptance of the prosecution case.

Was the summing up adequate and fair?

[23] The only aspect of the summing up challenged by Ms Leavai was that the judge did not put the defence case adequately to the assessors. What is required in this regard depends much upon the trial context. Here there were four accused on trial upon multiple charges as both principals and parties. The trial continued over four hearing days. Before the summing up, prosecuting counsel and four defence counsel delivered closing addresses. Against this background the Judge faced a difficulty in that he had to put the multiple respective cases to the assessors, who had just listened to five counsels, and in a manner that captured the essence of the credibility disputes but without undue repetition.

[24] We have closely considered the summing up. We are satisfied that the Judge adopted a course that was both adequate and fair. He referred to the essential features of the prosecution and the defence cases, but in a way that made it clear to the assessors that they must pay due regard to the closing arguments as well as his succinct overview of the factual disputes. This ensured balance and thereby fairness. Ms Lui, we note, took exception to some aspects of the Judge’s factual overview because she considered it unduly favourable to the defendants. While we do not necessarily accept this, it is an indicator that Vaai J steered an appropriate middle course.

The Appendix to this Judgment

[25] Before we turn to the two sentence appeals in this case we wish to deal with an issue arising in relation to this Court’s guideline judgment for rape sentencing in Peti Key v Police [2013] WSCA 3. The guideline judgment adopted lengthy passages from R v AM and stressed the need for these to be read together with the Peti Key discussion of the bands applicable in Samoa. This of course requires readers to consult a second judgment contained in the New Zealand law reports, a matter of some inconvenience.

[26] We are concerned that this inconvenience may have caused instances where the Samoan rape bands have been applied without full regard to particularly the Credibility assessment factors discussed in paragraphs [34] and [64] of R v AM, and the band description paragraphs at [93, [98] [105] and [108 – 109]. With this concern in mind we propose to add an appendix to this judgment which sets out these paragraphs. This will enable practitioners and judges to access these paragraphs without the need to consult a judgment reported in another jurisdiction. We add that there may still be cases where it is necessary to consult R v AM, in particular the examples of cases falling towards the lower and upper ends of each rape band. This will likely be in those cases where there is disagreement concerning the band into which the offending falls. Given that the Samoans bands were set using the New Zealand model but with an upwards adjustment to accommodate the higher maximum penalty of life imprisonment in Samoa, we consider the example cases in R v AM may prove helpful in these marginal cases.

[27] The Appendix refers to the sentence range prescribed in each of the Samoan rape bands, after which the various band description paragraphs are set out. Hence each band is followed by a paragraph, or paragraphs, that provide a general outline of the type of offending intended to fall within that band.

[28] The paragraphs from R v AM that discuss the Culpability assessment factors refer to the “SEU.” This is a reference to the Sentencing Establishment Unit which prepared a set of draft sentencing guidelines in New Zealand. Although these have not been formally adopted the Court of Appeal paid some regard to them because the guidelines were prepared after consultation with interested parties. We note this for the information of persons reading the Appendix.

The sentence appeals

[29] In sentencing Evan the Judge adopted a starting point of 20 years in relation to the rape committed in the first incident, and 18 years in relation to the second rape conviction. He allowed deductions of 3 years on account of the appellants’ young age, 18 months in recognition of the village banishment order and another 6 months for the traditional ifoga. Hence the effective rape terms became 15 years and 13 years, respectively. All sentences were concurrent, including those for being a party to unlawful sexual connection, indecent assault and attempted unlawful sexual connection.

[30] Ms Leavai adopted a sensible pragmatic approach by focusing on the rape sentences alone, as she did in relation to the conviction appeal. Counsel argued that the starting point of 20 years was too high. The National Prosecution Office had sought a starting point of 18 years.

[31] The Judge did not explain how he arrived at the starting point, nor did he refer to a band into which he placed this case. We consider this was not a band four case, but the aggravating features placed it in band three indicating a starting point between 14 to 20 years.

[32] The assessment factors present were the scale of the offending in that there were two acts of rape, the vulnerability of the intoxicated complainant, the involvement of multiple offenders and a degree of premeditation in that the complainant was taken to the bedroom when she had requested assistance to go to her home. These aggravating factors were present at a serious, or perhaps moderate level in relation to premeditation.

[33] However, we are not satisfied that this case warranted a starting point at the top end of band 3. We settle upon 17 years as appropriate, as this places the starting point in the middle of the band 3 range. We also note that the better course was to view the 2 rapes together, and fix one starting point for both.

[34] Ms Leavai contended that more than 3 years should have been allowed for Evan’s young age, he being 17 years at the time. We are not persuaded of this, particularly as maintaining 3 years in the context of a reduced starting point effects a proportional increase in the allowance in any event. The other allowances were not seriously challenged. A total 5 year deduction reduces the end sentence to 12 years imprisonment. We allow the appeal and substitute concurrent 12 year sentences on each of the rape charges. Otherwise, the concurrent sentences remain as imposed.

[35] Faatafa’s sentence of 11 years imprisonment was arrived at from a starting point of 18 years for the rape he committed at the time of the second incident. Reductions totalling 5 years identical to those in Evan’s case were allowed, plus a further 2 year reduction for his plea of guilty. Faatafa was a student, aged 19 years, at the relevant time.

[36] In large measure the above discussion applies equally to this appellant. The same aggravating features exist, save that the scale of offending is less, there being only one conviction for rape. We consider the appropriate starting point was 15 years which results in an end sentence of 8 years imprisonment. We allow the appeal and reduce the rape sentence accordingly.

[37] In both cases time spent in custody is to be deducted.

Honourable Justice Fisher
Honourable Justice Blanchard
Honourable Justice Panckhurst

APPENDIX
(paragraph references are to the decision in R v AM [2010] NZCA 114)
(references to Acts are to New Zealand statutes)

Culpability assessment factors

[34] Before setting out the culpability assessment factors, we make two general observations.
[35] First, as this Court said in R v Taueki,^[1] the “first point of reference” for the sentencing Judge is the Sentencing Act. Many of the requirements of the Act are mandatory and this judgment does not affect those requirements. For example, s 9 of the Act sets out a number of aggravating and mitigating factors which must be taken into account. That said, as noted in Taueki, the guidelines set out in this judgment will provide direction in the manner of application of the requirements of the Sentencing Act.
[36] Secondly, given the wide variety of circumstances that may be encompassed by offending in this area, it is not possible to provide an exhaustive list of all the factors that may contribute to the culpability of an offender. With that caveat, in the discussion which follows we draw on various factors that have been treated as relevant in the authorities and on the approach taken in the SEU and United Kingdom guidelines. We group the various factors in a way that is intended to provide guidance to sentencing Judges. However, it is trite but important to emphasise that what is required is an evaluation of all the circumstances. Listing relevant factors and setting out bands in the way we have done does not remove the need for judgment. A mechanistic approach is not appropriate.

Planning and premeditation

[37] The degree of planning and premeditation reflects criminality (s 9(1)(i) of the Sentencing Act is to the same effect). Sexual violation of an impulsive nature, although still serious, will generally be less so than that involving grooming of a child or young person, taking steps to get a victim alone, giving the victim alcohol or drugs with a view to offending, and other predatory behaviour. As the SEU draft guidelines note, offenders who show predatory sexual behaviour may be more likely to offend in an opportunistic manner. They should not be treated as lacking premeditation.

Violence, detention and home invasion

[38] There is violence inherent in any act of sexual violation. There will usually also be some associated violence, for example, pushing or pulling a victim to the ground and holding him or her down. Where the associated violence is more than mild, this is another factor which increases culpability. Further, it is necessary to assess the seriousness of the overall level of violence, whether inherent in the act of sexual violation or associated with it. The more serious the overall level of violence the more serious the offending.
[39] The reference to violence also encompasses threats of violence or other harm to the victim and to others, the presence and use of weapons and other forms of intimidation designed to assert control or to prevent a victim from reporting the offending. Section 9(1)(a) of the Sentencing Act similarly refers to both actual or threatened violence or the actual or threatened used of a weapon.
[40] An offender may abduct or detain the victim to facilitate the offending conduct. As with violence, a level of detention is inherent in sexual offending of this nature because the victim is not free to leave. But, where the sexual violation involves detention or abduction beyond that, this too increase the seriousness of the offending. Seriousness increases as the length of detention increases.
[41] Where the offender breaks into the victim’s home or is unlawfully in the home, that also increases the seriousness of the offending as s 9(1)(b) of the Sentencing Act provides.

Vulnerability of victim

[42] Section 9(1)(g) of the Sentencing Act applies. The section treats as an aggravating factor the vulnerability of the victim because of age or health or any other factor known to the offender. The United Kingdom guidelines refer to extreme youth or old age of the victim as increasing of the offending and also suggest that offending will be more serious the younger the child and the greater the age gap between the victim and the offender.^[2] Disparity in age between the victim and the offender may well be a factor in assessing the extent of vulnerability.
[43] The other situations in which a victim may be considered vulnerable are varied: mental impairment or physical frailty are two examples, a victim who is the subject of a protection order to protect him or her from the offender is another.

Harm to the victim

[44] Harm is inherent in the offending. The more harmful the offending, the more serious it is. Section 9(1)(d) of the Sentencing Act applies. Physical harm, for example, cuts and bruising, are indications that the offending is more serious. Similarly, if the offending involves unprotected sex with the risk of pregnancy or infection or it is has those effects these factors indicate more serious offending. However, this is not to downplay the psychological and other non-physical harm, for example, escalation of psychological problems and restrictions on the ability to go about the victim’s daily life. The impact on others, such as children, other family members or those providing care and support to the victim is also relevant.

Multiple of offenders

[45] The fact that the violation involves more than one offender acting together is a factor increasing culpability. In discussing offending more generally, the United Kingdom guidelines express this as an indication that the offending will have more than usually serious degree of harm.^[3] The role and extent of participation of the various offenders will of course be relevant in assessing an individual’s culpability.^[4]
[46] As the SEU draft guidelines suggest, gang rape may fall within the highest rape band despite the absence of other aggravating factors.

Scale of offending

[47] More than one incident or extended abuse over a prolonged period of time is more serious as is repeated rape or sexual violation and associated degradation or indignities. Examples of degradation include videotaping or photographing the offending and offending against the victim whilst others are present. Cruelty or callousness also make the offending more serious (s 9(1)(e) of the Sentencing Act includes “particular cruelty" as an aggravating factor).
[48] Offending against multiple victims is another aspect which increases the culpability of the offender. The Crown submits that if there are multiple victims this should lead to a departure from the guideline. We agree with the Crown submission that there is a risk that including such offending within the guidelines may not give adequate recognition to the harm caused to each victim. However, this aspect can be addressed in two ways. First, by application of the provisions in the Sentencing Act relating to cumulative and concurrent sentences^[5] and the totality principle.^[6] In that context we note that where there are multiple victims of offending (particularly in cases where there have been offences over a number of years against multiple victims), the 20-year maximum for one offence is not the maximum available sentence able to be imposed for the series of offending.
[49] On the other hand, a realistic view is to be taken where a number of offences are committed as part and parcel of what is, in substance, a single incident. Offending in one case involving indecent assaults followed by sexual violation by rape may be no more serious than offending in another case in which the only offence committed is sexual violation by rape. What is required is a common sense approach to overall culpability.

Breach of trust

[50] Breach of trust is recognised in s 9(1)(f) of the Sentencing Act as a factor which increases the culpability of the offender. Offending within the familial relationship involves a breach of trust and offending by a parent against his or her child which is particularly serious. Other relationships of trust may arise where a person has assumed some responsibility in relation to the victim, for example, the neighbour who regularly babysits the child or the school sports coach.

Hate crime

[51] Ms Aikman submits that hate crimes against specific ethnic, religious or sexual groups may well warrant specific mention in the guidelines as a factor increasing seriousness. We agree because these matters can be a factor in sexual crime and are recognised in s 9(1)(h) of the Sentencing Act as an aggravating factor.

Degree of violation

[52] As the SEU draft guidelines suggest, seriousness increases as the degree of violation increases, for example, use of a finger as opposed to a fist, or very brief penetration as opposed to a lengthy assault. Further, the more force involved in the actual violation the more serious the offending will be.

Mistake belief in consent

[53] There is authority for the proposition that to commit rape under a mistaken but unreasonable belief that there was consent is not a mitigating factor: R v Hill.^[7] Obviously, one of the purposes of the rape law reforms was to make violation where there is a mistaken and unreasonable belief in consent a crime. But it does not follow or undermine that objective to say that the offender’s culpability may be different in such a case. The contrast is with the position where the offender knows there is no consent. As in other areas of the criminal law, negligent acts are seen as less serious than deliberate acts. If the belief is grossly unreasonable that will not avail the offender. There may, however, be cases where it is plain that the belief, while unreasonable, was genuine and this factor may reduce culpability.

Consensual sexual activity immediately before the offending

[54] Individuals have the right to choose the level of sexual activity in which they wish to participate and sexual partners are obliged to respect their wishes. In R v A however it was recognised that, depending on the circumstances, culpability may be diminished where there was consensual sexual activity immediately prior to the offending.
[55] The SEU draft guidelines follow the R v A approach in that they suggest that in limited circumstances seriousness may decrease where the offender and an adult victim have engaged in consensual sexual activity just before the offending. The SEU indicated that the relevance of this factor depends on the circumstances including the type of earlier consensual activity, the similarity to what comprised the sexual violation, and the timing. The SEU draft guidelines would also make it plain that the seriousness of the non-consensual act may outweigh any mitigating effect of the prior consensual activity.
[56] The United Kingdom guidelines take a similar approach noting first that all of the non-consensual offences:^[8]

... involve a high level of culpability on the part of the offender, since that person will have acted either deliberately without the victim’s consent or without giving due consideration to whether the victim was able to or did, in fact, consent.

[57] The United Kingdom guidelines go on to say that planning an offence suggests a higher level of culpability than “an opportunistic or impulsive offence”.^[9] The guidelines continue:

2.20 In Millberry, the Court of Appeal established that the offender’s culpability in a case of rape would be ‘somewhat less’ in cases where the victim had consented to sexual familiarity with the offender on the occasion in question than in cases where the offender had set out with the intention of committing rape.

2.21 Save in cases of breach of trust or grooming, an offender’s culpability may be reduced if the offender and victim engaged in consensual sexual activity on the same occasion and immediately before the offence took place. Factors relevant to culpability in such circumstances include the type of consensual activity that occurred, similarity to what then occurs, and timing. However, the seriousness of the non-consensual act may overwhelm any other consideration.

[58] The Crown opposed the inclusion of this factor as a mitigating feature primarily on the ground that it undermined the non-consensual nature of the violation and so reduced its seriousness. Ms Aikman supported the United Kingdom and SEU approach essentially on the basis there may be a correlation with lack of premeditation.
[59] This is a difficult and controversial issue. On balance for the reason advanced by Ms Aikman we adopt the SEU’s approach. This has been the law in New Zealand at least since R v A. Further, after extensive consultation, this is the position adopted by both the United Kingdom and the SEU.
[60] We do not envisage that this factor will have a great deal of impact in many cases. The focus is on assessing the seriousness of the offending. The sentencing judge has to proceed on the basis that the act constituting the offence was non-consensual or the belief in consent unreasonable. The totality of the behaviour comprising the sexual violation then has to be considered.

Offending against person with whom offender is in or has been in a relationship

[61] Culpability is not reduced by any sense of entitlement associated with a current or previous relationship. As this Court has said, there is no separate regime for sexual violation of a spouse or partner or those who have previously been in a relationship.^[10]

The views of the victim

[62] To what extent should sentencing be influenced by the views of the victim? This arises most acutely where the victim is seeking a lenient sentencing response.
[63] Where sexual offending occurs within a family or social group, victims are frequently under pressure either not to involve the criminal justice system or to withdraw from it. defying this pressure can have adverse consequences in terms of family or social rifts and resulting ostracism. The circumstances of the present case, discussed at [140] below in which C has suffered as a result of the fracturing of the wider family, are not untypical. Unsurprisingly, judges often treat victims’ calls for leniency with caution, seeing them as likely to be the result of illegitimate family or social pressure. Giving effect to such calls may lead to increase pressure on other victims. Judges are required to treat like cases alike. (See s 8(e) of the Sentencing Act 2002.)
[64] On the other hand, it is not easy to see why a judge should ignore a claim by victims that the harm suffered was minimal, at least where the judge is satisfied that illegitimate pressure has not been brought to bear on the victim. To do so would be patronising. As well, disregarding a victim’s view in this context is likely to reduce the number of cases of rape which are prosecuted. No general rule can be set out. Judges will need to look at each case keeping in mind that some calls for leniency are a result of pressure. In addition, crime is a public wrong and so the victim’s views are a factor that, like others, normally cannot overwhelm the outcome.

The proposed bands

(Samoan) Rape Band One: 8–10 years

[93] This band will be appropriate for offending at the lower end of the spectrum; that is, offending where the aggravating features are either not present or present to a limited extent. Rape band one is not an appropriate band for offending where the level of violence is serious, the case involves an extended abduction, a victim who by reason of factors such as age (children or elderly persons) or mental or physical impairment is vulnerable or an offender is in concert with others. Where none of the factors referred to above at [37] to [52] which increase the seriousness of the offending are present a starting point at the bottom end of this band would be appropriate. Where one or more of these factors is present to a low or moderate degree, a higher starting point within the band would be required.

(Samoan) Rape Band Two: 9-15 years

[98] By comparison with rape band one, this band is appropriate for a scale of offending and levels of violence and premeditation which are, in relative terms, moderate. This band covers offending involving a vulnerable victim, or an offender acting in concert with others or some additional violence. It is appropriate for cases which involve two or three of the factors increasing culpability to a moderate degree.

(Samoan) Rape Band Three: 14–20 years

[105] This band will encompass offending accompanied by aggravating features at a, relatively speaking, serious level. Rape band three is appropriate for offending which involves two or more of the factors increasing culpability to a high degree, such as a particularly vulnerable victim and serious additional violence, or more than three of those factors to a moderate degree. Particularly cruel, callous or violent single episodes of offending involving rape will fall into this band.

(Samoan) Rape Band Four: 19 years to life

[108] The same sort of factors that place offending towards the higher end of rape band three will apply here but it is likely that the offending in rape band four will involve multiple offending over considerable periods of time rather than single instances of rape.
[109] Perhaps the paradigm case of offending within this band is that of repeated rapes of one or more family members over a period of years. Offending of this nature, especially that involving children and teenagers will attract starting points at the higher end of this band as indicated in the authorities discussed in R v S (CA64/06)^[11] and R v Proctor.^[12] Gang or pack rape is another situation which is likely to fall within this band.

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^[1] R v Taueki [2005] 3 NZLR 372 (CA).
^[2] At [2.7] and [2.8].
^[3] At [1.20].
^[4] Taueki at [42].
^[5] Sections 83 and 84.
^[6] Section 85; Taueki at [46].
^[7] R v Hill CA94/02, 21 October 2002.
^[8] At [2.16].
^[9] At [2.19].
^[10] R v Tikitiki CA 195/96, 10 August 1998; R v H CA248/02, 31 October 2002 at [15].
^[11] R v S (CA64/06) [2007] NZCA 243.
^[12] R v Proctor [2007] NZCA 289.