R v Campos [2021] NZDC 7422

Published 25 May 2021

Sentencing — sexual violation by rape — removing condom during sex — "stealthing" — Sentencing Act 2002, s 27 — Prostitution Reform Act 2003, s 9 — R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 — Crump v R [2020] NZCA 287 — De Macedo v R [2020] NZCA 132. The defendant appeared for sentence after being found guilty on a charge of sexual violation by rape. The victim of the offending was a sex worker whose services the defendant had engaged. She had made clear to the defendant that he had to wear a condom during their session. Regardless, the defendant attempted to remove his condom during sexual intercourse. The victim told the defendant that he could not behave in this way, but shortly afterwards the defendant again removed his condom and completed his act of sexual intercourse before the victim was able to protest. At trial the jury had rejected the defendant's explanation that the victim had consented to his removal of the condom. The Court considered the offending to be aggravated by planning and premeditation; the risks inherent in unprotected sex; and major impact on the victim. The Court found that the offending fell into band 1 of R v AM and set a start point for sentence of six and a half years' imprisonment. There were no mitigating features to the offending itself, but the defendant was allowed discounts for previous good character and personal circumstances (the fact that the defendant would be deported after completing his sentence, and the hardship that this would cause to his family, who depended on the money that the defendant sent them from overseas). The defendant had also spent a lengthy period on bail and as an immigrant with no local family support and limited English, would find imprisonment especially hard. However the Court refused to allow a discount on cultural grounds, reasoning that rape of a sex worker was just as much a crime in the defendant's native country (The Philippines) as it is in New Zealand. The final sentence was three years nine months' imprisonment. Judgment Date: 23 April 2021