Appeal against sentence for sexual violation by rape – Crimes Act 1961, ss 128(1)(a), 128B; Criminal Procedure Act 2011, s 250 – should Crump guide the assessment of the appropriate starting point? (yes) –adequacy of discount for emotional harm reparation – appropriate discount for significant and traumatic personal consequences of being disowned? – should home detention be imposed as an alternative to imprisonment given the presumption in s 128B Sentencing Act 2002?
Jammu v R [2024] NZHC 2332 per Eaton J
Dilpreet Jammu is an Indian national who came to New Zealand to study in 2018.
He was granted New Zealand residency in 2022 and has been employed in various hospitality roles before becoming a taxi driver.
In February 2022, Jammu began an intimate relationship with the victim. He was 27. She was 19.
On 10 May 2022, the victim and Jammu parked on the side of the road in her car. Jammu suggested sex. She agreed and got on top of him.
When he started to penetrate, she told him she was in pain and asked him to stop. He said, “You’ll be fine” and continued, stopping 30 to 60 seconds later.
The following day he texted her an apology, acknowledging that she was in pain, and he had forced her.
Jammu was arrested and charged with sexual violation by rape. This meant his passenger endorsement to be a taxi driver was cancelled and he became unemployed.
At the time he was charged, he was engaged to a fiancée in India, whom his parents had arranged for him to marry. When he disclosed the offending, the engagement was broken off and his parents disowned him.
This means he is not able to return to his hometown in India where his parents reside and will suffer the social stigma of being disowned.
Jammu pleaded guilty to the charge after a sentence indication where the judge indicated a starting point of three years and nine months’ imprisonment.
At sentencing, Jammu was given credit for his guilty plea (20%), the impact on him – likely deportation and being disowned (5%), previous good character and rehabilitative prospects (10%) and an offer to pay $7,500 emotional harm reparation, which was a substantial portion of his lifesavings (5%).
The final sentence imposed was two years and three months’ imprisonment, along with an order that he pay the $7,500 reparation offered.
Jammu appealed.
The key arguments were that the starting point was too high when compared to a withdrawn consent case decided by the Court of Appeal (Crump v R [2020] NZCA 287) and that insufficient deductions were allowed for the emotional harm reparation and the consequence of being disowned.
The Crown argued that Crump was not a guideline judgment for withdrawn consent cases and that the discounts given by the District Court Judge were adequate.
Applicable principles: Crimes Act 1961, ss 128(1)(a), 128B – Criminal Procedure Act 2011, s 250 – should Crump guide the assessment of the appropriate starting point? (yes) –adequacy of discount for emotional harm reparation – appropriate discount for significant and traumatic personal consequences of being disowned? – should home detention be imposed as an alternative to imprisonment given the presumption in s 128B Sentencing Act 2002?
Held: The appeal is allowed. The appropriate starting point is no more than three years’ imprisonment.
From that starting point, discounts for guilty plea (20%), remorse and reparation (12.5%), previous good character (7.5%) and personal consequences of being disowned (10%) are appropriate, resulting in an end sentence of 18 months’ imprisonment.
A sentence of five months’ home detention was substituted, the court being satisfied that this would meet the sentencing principles of denunciation, deterrence, accountability and assisting with Jammu’s rehabilitation.
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