New sentencing guidelines for rape

April 8th, 2010 at 1:00 pm by David Farrar

The released last week their decision in R v AM. The individual decision about MA is not of as much interest as the fact the Court has used the case to quite radically change the way courts assess what term of imprisonment should apply.

has a maximum sentence of 20 years imprisonment and in 1994 the Court of Appeal in R v A ruled that the starting point was 8 years, and there was a large number of factors which could push that up or down.

The result of R v A is that almost all sentences tended to cluster around the starting point, and relatively few got near the maximum, or at the other end, got near the minimum. It also led to some lack of consistency.

In R v AM, the Court of Appeal has devised for bands of offending for rape, and three for unlawful sexual connection. They are:

  1. Rape 1 – 6 to 8 years
  2. Rape 2 – 7 – 13 years
  3. Rape 3- 12 – 18 years
  4. Rape 4 – 16 – 20 years

And

  1. USC 1 – 2 to 5 years
  2. USC 2 – 4 to 10 years
  3. USC 3 – 9 to 18 years

Before I detail what qualifies for each band, I have to say I think the decision is a significant improvement for sentencing. It has bee frustrating that no matter how vile the crime, very few people ever get close to the maximum sentence. This should result in the very worst rapes getting sentences close to the 20 year maximum.

The decision gives a lot of examples of how existing cases would fit into each band, and whether they would be at the lower or upper ends. It is a very detailed sentencing guide. To some degree it shows why there is no need to have a Sentencing Council, as legislated by the last Government. The Court of Appeal looks to be filling that niche quite nicely.

The description of the activity which falls in each band is summarised here:

  1. Rape Band 1 (6 to 8 yrs) – offending at the lower end of the spectrum where there are no aggravating factors, no serious violence, no abduction, the victim is not very young or very old.
  2. Rape Band 2 (7 to 13 yrs) – involves moderate violence, pre-meditation, a rape involving more than one offender, or an especially vulnerable victim
  3. Rape Band 3 (12 to 18 yrs) – offending with serious additional violence, wit multiple (three or more) aggravating factors. For particularly cruel, callous or violent rapes.
  4. Rape Band 4 (16 to 20 yrs) – for multiple offending over considerable periods of time, gang or pack rape.

These guidelines are binding on all lower courts from the 31st of March. It will be interesting to see how it impacts sentencing. The Court has said it does not expect the average term of imprisonment to increase (it has already increased from 7 yrs 3 mths in 1996 to 8 yrs 3 mths) but that there will be a greater variety of sentences – more at the top end, and more at the lower end.

It is worth noting that the above focuses on the initial sentence for the offending. Courts also then take into account the circumstances of the offender. Also if an offender pleads guilty their setence is normally reduced by 10% to 33% depending on how early in the process they plead guilty.

The case judgement, from a legal point of view, is a very interesting one. On an emotional front, it was pretty gruesome reading the summarised details of around 52 rape and unlawfu sexual connection cases. I can only imagine what the trauma must have been like for the victims.

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13 Responses to “New sentencing guidelines for rape”

  1. Ryan Sproull (6,661 comments) says:

    Legalise cannabis, release everyone in prison on cannabis charges, give their prison space to convicted rapists, and don’t let rapists out of prison until they’ve convinced a panel of psychiatrists that they will never rape again. What reason is there to believe that after 13 years a pre-meditated rapist won’t do it again, with a few lessons under the belt for not getting caught like last time?

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  2. GPT1 (2,042 comments) says:

    It is amazing what some people do to others. One of the worst cases I read was about parents using buggery as a punishment on their infant son. Women used a tool. They did not see the problem and were surprised to be convicted.

    Anyway on to the decision. I think the Court of Appeal has deliberately tried to replace the sentencing counsel now that it is on the way out. It does reflect one of the statutory provisions of consistency in sentencing. Fortunately there is also emphasis that Judges are to use their discretion – the factual situations of different cases can vary wildly. There is also some careful suggestion that in extraordinary cases there is room to go below the minimum – perhaps a consent withdrawn after sexual conduct and a genuine but mistaken belief that consent was still present as an example.

    I actually think the overall sentencing will sneak up but it is difficult to disagree with the most vile crimes being treated as such – there is a maximum sentencing for a reason. It should only be used in the most extreme of circumstances (previous offender, multiple predatory rapes for eg – Parnell Panther type offending) but it probably should be used.

    Also of note is that this is the first time the CA have tried to provide bands for unlawful sexual connection and that they have stepped back from providing guidance on indecent assault. The latter is so fact dependant I think it would be difficult. In fact I had a sentencing exercise recently where between the Crown and myself we only managed to provide one case reference that was not directly on point in any event – it was simply a case of matching the facts to the sentencing act.

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  3. RKBee (1,344 comments) says:

    I hope the same rape bands apply to those who cry rape.

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  4. Graeme Edgeler (3,216 comments) says:

    perhaps a consent withdrawn after sexual conduct and a genuine but mistaken belief that consent was still present as an example.

    Reasonable belief that consent was still present would be a complete defence to a rape charge.

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  5. backster (2,000 comments) says:

    Don’t forget to divide by 3 to get the actual time served.

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  6. Bevan (3,965 comments) says:

    It is amazing what some people do to others. One of the worst cases I read was about parents using buggery as a punishment on their infant son. Women used a tool. They did not see the problem and were surprised to be convicted.

    Thanks mate! I could have done without knowing there were people that fucken sick living in this world!

    I hope those parents got what was coming to them in prison.

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  7. GPT1 (2,042 comments) says:

    Yeah, sorry Bevan. Needed to share. They got stoic sentences to be fair – and rightly so.

    Yes Graeme. Good point. Genuine but unreasonable might be a better way of putting it.

    I don’t do a lot of parole work but I would be surprised if any sex offender gets out after 1/3. Often as not the courses they are expected to do are not available in the first part of the sentence so the parole board boots them back on that ground. Graeme do you have any experience with the “standard” parole dates for sex offenders?

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  8. Murray (8,835 comments) says:

    Very close to a Waihopai defence there Graeme.

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  9. Rex Widerstrom (5,125 comments) says:

    RKBee notes:

    I hope the same rape bands apply to those who cry rape.

    Yes, six years of one’s life, even at the very lowest end of the sentencing scale, is a very long time indeed. Worse still is the label “rapist” hung round your neck for the remainder of your days.

    A deliberate false charge of any crime should have the same sentencing guidelines applied as the crime itself.

    But there’s another level of culpability too. It’s all very well to cry “rape” but that has to be accepted by police, who then ought to look for independent corroboration. If a rape (or any other) charge gets to court and is found to be false, it ought to automatically trigger a review of the decisions of the investigating officers, with a penalty of dismissal (if incompetence is found) to, again, equal terms of imprisonment as the offence itself incurs if malice is proven. Not (as tends to happen now) a quiet invitation to take early retirment and nice pension (after a union-funded legal team hae fought tooth and nail to exuse it, of course).

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  10. Graeme Edgeler (3,216 comments) says:

    Graeme do you have any experience with the “standard” parole dates for sex offenders?

    Not at that level. My casework has tended to be around preventive detention. But you’re right – it’s pretty much the practice of the Corrections not to offer rehabilitative programmes (re: sex offending) until after the first parole hearing. So basically, no sex offender would ever be paroled at the first opportunity. Higher non parole periods than the standard one-third are also more common with sexual and violent offending.

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  11. tvb (3,939 comments) says:

    Sentencing by numbers. Plug in these characteristics, bingo 11 years. NEXT.

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  12. kiki (425 comments) says:

    What sentence would there be for a policeman who charges someone with rape even though the complainant tried to withdraw her accusation and admitted to the police that she lied but was told that she would be charged if she did that so shut up and went along with the police to frame a man that was innocent and was eventually found not guilty when the woman’s adult children testified for the man and after he had paid $40000 in legal fees of which he had to borrow $20000 and then developed a serious drinking problem.

    All up took over a year for nothing at a huge cost to everyone involved except the officer who I’m sure sleeps well at night for fighting evil.

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  13. Graeme Edgeler (3,216 comments) says:

    What sentence would there be for a policeman who charges someone with rape even though the complainant tried to withdraw her accusation and admitted to the police that she lied but was told that she would be charged if she did that so shut up…

    4-6 years, probably.

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