Supreme Court to hear appeal against sentence of man who committed rape at age 15
The young man's lawyers say he should have been dealt with in the Youth Court, where a prison sentence would have been unlikely.
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This article deals with sexual offending against three young women and may be distressing for some readers.
A 15-year-old who raped a teen before going on to sexually assault two women a few years later was found guilty and sent to prison for just over three years.
Now lawyers are arguing before the Supreme Court about whether he should have been sentenced as a youth, based on his age when he first offended, or as a grown man when he was convicted at the age of 21.
His lawyers say he was a child when he offended and should have been dealt with as such by the courts.
But lawyers for the Crown say he turned out to be a repeat sexual offender with no remorse, who assaulted two more young women when he was 18.
The outcome of the case could determine if he will be sent back to prison - he is currently out on bail - or if he receives a community-based sentence and rehabilitation.
The young man's name, personal details, and the identities of his victims are all suppressed.
The rape victim was older than him. One of the other two women he went on to offend against several years later was older, the other younger.
His first victim had consumed alcohol and drugs before the young man, at that time just 15 years old, gave her sleeping pills. She was unable to stay alert, and he raped her.
The offending against the other two women happened when he was 18.
The women each awoke to find him sexually assaulting them.
The offences came to light later on and the young man, by then an adult, was charged in respect of all three women at the same time - one charge of rape and two of unlawful sexual connection.
He admitted the lesser sexual connection charges on the morning his trial was due to begin and was found guilty of the rape by a jury two days later.
He was 21 years old when convicted, and was sentenced in a district court to three years and four months in prison after the judge took the rape as the most serious and "lead" offence.
He is now appealing against that sentence.
His lawyers, Letizea Ord and Emily Blincoe, say that if he had been charged with rape close to the time he committed it, he would probably have been dealt with in the youth justice system, for offenders aged 17 and under.
The emphasis in the Youth Court is on rehabilitation. In their submissions his lawyers say it was "highly unlikely" that he would have been sent to prison had he been dealt with there.
They say that the two charges of unlawful sexual connection, which would have been dealt with in an adult court, would not have attracted a sentence of imprisonment on their own.
They also say that the community would be safer if he were dealt with outside the prison system, with specialist treatment, because no targeted youth sexual offender programmes are available behind bars.
Ord and Blincoe argue that New Zealand is an "outlier" in how it deals with offences committed by minors but uncovered later.
In England and Wales, an offender's age at conviction is specified in law, but sentencing guidelines are based on the outcome that was likely to have been applied at the date of the offence, and prison is a "last resort".
The Australian states take a similar approach, and Canada has a law which says that youth justice legislation applies to all offending committed under the age of 18, regardless of when charges are laid.
However, the Crown Law Office said New Zealand law did not support sentencing outcomes in such cases that disregarded the legislation and methodology of the adult courts in favour of the processes governing the "intensely specialised" Youth Court.
"The appeal also requires the [Supreme] Court to engage with an artificial factual scenario: to treat [the appellant] as though he was still 15 years old for the purpose of sentencing," the Crown submissions to the court said.
"That ignores the reality of the case before the court: a 22-year-old repeat sexual violation offender who denied any wrongdoing and remained unremorseful at sentencing. One who, up until the time this court granted him bail, had taken no steps towards rehabilitation."
The young man has so far spent 13 months in custody. He has engaged in rehabilitation since being bailed.
The Supreme Court will begin hearing his case on Tuesday.
*
This story originally appeared in the
New Zealand Herald
.
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