The girl involved had been in his mother's foster care. She was placed there after displaying behavioural issues, including sexualised behaviour, in a previous foster situation.
House rules and sleeping arrangements were designed to manage the situation. The girl and the teen each had separate bedrooms while his mother and her female partner shared a room.
About two months later his mother got a night shift job, which she did for about four months.
A few months after beginning that job, the teen's mother got a new partner who came to live at the house but her old partner remained living there too. Household arrangements changed with the teen moving into a sleepout and his mother's old partner taking his room.
The new partner was not approved as a foster carer by Oranga Tamariki (OT) so six months later the girl was moved to another foster family.
The charges covered a date range reflecting the eight months or so that the girl was in the house, during which the boy was aged 14 and 15.
Interviewed by a specialist child interviewer when she was eight for an evidential DVD that was shown to the jury, the girl said the offending began when her foster mother started the night shift work and continued every night until her mother finished that work and got a new partner.
She said the last offence was a couple of months later during Easter (the allegation of which the man was acquitted).
Aged 13 when she gave her evidence at trial, the girl confirmed her claims in the earlier evidential interview but under cross-examination said the teen only raped her for the first three nights that his mother worked night shifts and again that final time at Easter
The defence was that the offending never happened and there was no opportunity for it to have happened.
In successfully arguing for an increase to the youth discount, appeal counsel Scott Brickell submitted the 20 per cent discount given for that factor by the original sentencing judge was out of step with comparable cases.
Brickell said a 30 per cent discount was appropriate to mark the man's age at the time of the offending, his age at the time of sentencing, the impact of a long sentence on such a young man and his good prospects of rehabilitation.
The offending was opportunistic rather than premeditated – an impulsive response to the opportunity that presented itself and that impulsivity reflected the teen's age, Brickell said.
A long sentence imposed on the 21-year-old for offending committed when he was 15 could be crushing and there should have been recognition of the prospects for rehabilitation, he said.
Crown counsel Emma Hoskin argued against an increased discount saying the offending was not impacted by many of the youth-related attributes often focused on, such as susceptibility to negative influences, peer pressure, or impulsivity.
She said the level of discount already given was appropriate to reflect the impact of long sentences on young offenders and a young person's greater capacity for rehabilitation. And, she believed the man's prospects of rehabilitation were not as favourable as those in other cases as he was described in a pre-sentence report as having a "nonchalant attitude towards the offences and no remorse or concern for his victim".
The Appeal Court said the case warranted a 30 per cent discount. The Court also took into account the man had no history of offending either before or after this.
At the time of sentencing, he had a reasonable education on which to build a productive life, a supportive partner, a mother and a stepmother. In those circumstances, there must be a prospect of rehabilitation, notwithstanding concerns raised in the pre-sentence report and the man's high risk of reoffending due to his continued denial of the offending. His denial did not necessarily preclude the possibility of rehabilitation, the Court of Appeal said.
