A young rapist’s attempt to bring a second appeal against his prison sentence for attacking a fellow student at a Dunedin hall of residence has been rejected.
Sam Thomas Foster, 21, pleaded guilty earlier this year to raping a 21-year-old friend in her room at a student hall in October 2022.
He was sentenced in the Dunedin District Court to four years and two months’ imprisonment, a term upheld by the High Court in September.
His latest application sought leave to bring a second appeal challenging the seven-year starting point adopted at sentencing.
On Monday, the three-judge Court of Appeal panel declined the application, saying the proposed grounds did not meet the statutory threshold.
“The application for leave to bring a second appeal is declined,” the court said.
The summary of facts outlined that the victim had been drinking with friends at the hall from mid-afternoon and became extremely intoxicated by the evening.
Friends moved her back to her room shortly before midnight, described her as “floppy and unresponsive”, and left her fully clothed on her bed at 12.01am.
Foster entered the room alone at 12.14am.
A friend who checked on the woman found her vomiting into a bucket with Foster beside her.
Foster told him she was “really f-ed up” and that he was looking after her.
After the friend left, Foster removed a cardboard wedge that had been holding the door latch open, causing the door to lock and preventing anyone else from entering.
The court found Foster digitally penetrated the woman while she drifted in and out of consciousness.
She later awoke to find herself naked, with Foster violating her.
Judge Robinson, in the District Court, said the victim was “highly intoxicated and highly vulnerable” and that the offending occurred in a place where she ought to have been safe.
He also noted the “moderate” aggravating impact of the prior digital penetration and the fact that Foster locked the door.
The judge adopted a seven-year starting point before allowing discounts for a guilty plea, youth, and mental health factors.
Foster ultimately received a 50-month term.
Foster appealed to the High Court, arguing the starting point was too high and that the summary of facts did not explicitly state whether the victim was conscious, meaning he could have held an “honest but unreasonable belief” in consent.
Justice Dunningham rejected that argument, noting the summary said the victim was going “in and out of consciousness”.
She said the suggestion that the victim may have physically cooperated was “unfounded” and reflected Foster’s earlier attempts to blame her by claiming she had raped him.
His lawyer then sought a second appeal, claiming a lack of appellate guidance around sexual offending between intoxicated residents in student accommodation.
The Court of Appeal rejected that contention.
“All sentencing is fact specific,” the court said.
“There is nothing in the facts of the offending which raises a matter of general or public importance.”
The court also said any debate about which sentencing band applied did not matter, because the focus on appeal was the actual starting point used.
“There can be no real dispute with a starting point of seven years’ imprisonment,” the judges said, citing the digital penetration, extreme intoxication and door-locking.
Foster also argued the High Court erred by referring to two minor convictions that occurred after the offending.
The Court of Appeal accepted the timeline was misstated but said it had “no moment” because the District Court did not rely on those convictions and the 15 per cent youth discount was agreed by counsel and within range.
The court concluded there was “no risk of a miscarriage of justice if the appeal is not heard.”
The court’s decision leaves the original sentence intact.
Ben Tomsett is a multimedia journalist based in Dunedin. He joined the Herald in 2023.