Serial Auckland sex offender Luca Fairgray‘s jail sentence has been cut after he challenged the length of his prison term in the Court of Appeal.
Fairgray, 22, was found guilty of three charges of sexual conduct with a young person by a jury in February.
In March, he was jailed for 4.5 years for crimes against the 13-year-old girl.
Judge Evangelos Thomas said at sentencing that the victim would be dealing with the effects of Fairgray’s offending for the rest of her life.
Unbeknown to the jury in February, Fairgray had previously been convicted of 10 charges for assaults against six teenage girls, including rape and sexual conduct with a person under 16.
In June, Fairgray’s lawyer Susan Gray told the Court of Appeal that his sentence and its starting point was “manifestly excessive”.
A starting point (for example: four years’ prison) is the sentence which a judge decides on before taking into account aggravating or mitigating factors that may increase or reduce a sentence. A judge uses any comparable cases to determine what that starting point is.
Gray submitted “a lack of consistency is a lack of justice” and she pointed to another case where a man who had ongoing sex with one minor and one-off sex with another was given a starting point of 2.5 years in prison.
She acknowledged the pregnancy and abortion that occurred because of Fairgray’s offending, and its distressing impact, but said it was wrong for the judge to attribute the second surgical intervention needed to her client.
Gray also took issue with the Crown’s submission that the victim was vulnerable due to her age, as she said it was inherent in the charge.
The seven-year age gap between Fairgray and the complainant was at the lower end of the spectrum, she said.
“There was no breach of trust.”
Prosecutor Pip McNabb said the real issue before the court was whether the four-year starting point was available to Judge Thomas.
She told the Justices the victim’s vulnerability was about much more than just her age and included her autism, attention deficit hyperactivity disorder (ADHD) and oppositional defiant disorder (ODD) diagnosis.
“At the lowest end of that seven-year age gap we have a 13-year-old girl, so she had just become a teenager.”
At the other end of the spectrum, she said, was an educated 20-year-old male.
She did not agree that Fairgray’s own diagnoses of autism and ADHD tempered the difference between the pair.
His offending was “calculated and careful”, she said, and he actively pursued the girl despite knowing her age.
McNabb submitted that while the second surgery could not be directly attributed to the appellant, it was his actions of having unprotected sex with her that led to it.
The Crown maintained that there were some efforts by him to manipulate the victim.
The three appeal judges hearing the case agreed with Fairgray’s lawyer that the starting point taken by the sentencing judge was too high.
In its decision, released by Justice Rachel Dunningham this afternoon, the appeal court said there were clearly adverse effects on the victim through having to endure a termination of her pregnancy.
“However, there was no abuse of trust, nor was there a significant age gap (comparatively speaking) between the offender and the victim. There were also no other aggravating features present such as grooming, or abusive or demeaning behaviour. This assessment points to a lower starting point than was adopted in R v H [the case the sentencing judge used as a comparison] and we would adopt three and a half years,” she said.
After taking that starting point, the Court of Appeal then added on six months to Fairgray’s jail term due to the fact his offending followed crimes of a similar nature (the same uplift imposed by Judge Evangelos Thomas at his sentencing).
As a result, the Court of Appeal cut Fairgray’s final sentence to four years’ jail.
Katie Harris is an Auckland-based journalist who covers issues including sexual assault, workplace misconduct, media, crime and justice. She joined the Herald in 2020.
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