New Zealand Case Law: Decisions & Judgments

Topic

Attempted sexual violation

Legal area

Court

10 Jul 2023

HENG v R [2023] NZHC 1789

Citation

[2023] NZHC 1789
Court

High Court

The Court held the five year starting point for attempted penile penetration of the mouth was within the available sentencing range given the complainant's age and vulnerability, breach of trust, proximity to completion and aggravating features; the appeal against that sentence and the indecent communication sentence was dismissed, but the concurrent sentence for the indecent act was excessive and substituted with 20 months' imprisonment.
26 May 2023

R v FALAMOE [2023] NZHC 1268

Citation

[2023] NZHC 1268
Court

High Court

Apply R v AM banding using Ms M as lead offending (band 2) with a starting point of 11 years, uplift 1.5 years for separate offending against Ms H and a further 6 months for offending against children, yielding a finite determinate sentence of 13 years; decline preventive detention because risk at sentence end was not sufficiently high and could be mitigated by treatment; impose a minimum period of imprisonment of five years six months to denounce conduct and hold accountable.
2 Sept 2022

HENG v R [2022] NZHC 2232

Citation

[2022] NZHC 2232
Court

High Court

The Court found the complainant's EVI and oral evidence established, beyond reasonable doubt, attempts by the appellant to effect oral sexual connection but did not establish beyond reasonable doubt that actual insertion/penetration occurred because the EVI contained interviewer-led reformulations and the complainant consistently stated she closed or moved her mouth; accordingly the conviction for sexual violation by unlawful sexual connection could not stand but the evidence supported substitution with a conviction for attempted sexual violation under s234(2) CPA; the other convictions for i…
18 Dec 2020

SMITH v R [2020] NZCA 659

Citation

[2020] NZCA 659
Court

Court of Appeal

The prosecutor's comments did not amount to impermissible conduct and were proper contextual submissions about credibility and use of the defendant's police interview; trial counsel was properly prepared, advised the appellant who freely elected not to give evidence, and no miscarriage of justice occurred; the Judge's assessment of culpability factors (planning/premeditation, extreme victim vulnerability due to age and intoxication, multiple sexual violations and harm) justified a nine year starting point for the rape, and the overall ten year sentence was appropriate and upheld.
2 Mar 2016

PESEFEA V R [2016] NZCA 35

Citation

[2016] NZCA 35
Court

Court of Appeal

A six year starting point was within the available range given the identified aggravating factors (complainant's age and vulnerability, exploitation of trust, premeditation, harm and the offender's actions before and after the attempt); after a six month deduction for previous good character the final sentence of five years six months was not manifestly excessive.
30 Mar 2006

L V R SC 49/2005

Citation

L V R SC 49/2005
Court

Supreme Court

Attempted sexual violation requires intent to perform the physical element of the substantive offence (eg penetration) together with the circumstance that the complainant does not consent and that the accused does not have a belief on reasonable grounds that the complainant consents; the trial judge's confused directions on proximity and mens rea exposed a real risk of miscarriage of justice and the attempt conviction must be set aside, but the completed offence conviction stands and its sentence must be reassessed by the Court of Appeal.
7 Oct 2005

L V R SC 49/2005

Citation

SC 49/2005
Court

Supreme Court

The Court granted leave to appeal on two grounds because those issues raised questions of legal principle and practice of general public importance — the correct analysis of the elements of attempted sexual violation and the correctness of the trial judge's jury directions and allocation of judge/jury roles — and refused leave on the evidentiary sufficiency ground because it lacked general importance and did not disclose a risk of substantial miscarriage of justice.

New Zealand Case Law

HENG v R [2023] NZHC 1789

R v FALAMOE [2023] NZHC 1268

HENG v R [2022] NZHC 2232

SMITH v R [2020] NZCA 659

PESEFEA V R [2016] NZCA 35

L V R SC 49/2005

L V R SC 49/2005