A (CA104/2022) v R [2022] NZCA 651

A (CA104/2022) v R [2022] NZCA 651 [21 December 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA104/2022[2022] NZCA 651BETWEEN A (CA104/2022)AppellantAND THE KINGRespondentHearing: 23 August 2022Court: Goddard, Moore and Edwards JJCounsel: J D Munro for AppellantJ E L Carruthers for RespondentJudgment: 21 December 2022 at 9.00 amJUDGMENT OF THE COURTA The application to adduce further evidence is granted.B The appeal against conviction is dismissed.C The appeal against sentence is allowed.D The sentence imposed of four years and nine months' imprisonment on thecharge of sexual violation by unlawful sexual connection is quashed andsubstituted with a sentence of three years' imprisonment. The sentenceimposed on the charge of indecent assault (CRN 19063000858) is upheld.On the remaining five charges, the appellant is convicted and discharged.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Table of contentsPara noIntroduction [1]The offending [4]2012 incident — indecent assault on a young person, sexual connectionwith a young person and sexual violation by unlawful sexual connection [5]2014 incident — indecent assault on a young person and sexual connectionwith a young person [15]2017 incident — indecent assault [21]The trial [28]Approach on appeal [37]Appeal against conviction [37]Appeal against sentence [39]Issues on appeal [40]Should leave be granted to admit further evidence on appeal given byMr A's father? [43]Is G's evidence credible? [46]Is G's evidence fresh? [49]Conclusion on admissibility [55]Does the admission of Mr A's father's evidence create a reasonablepossibility of a different verdict? [57]Did the Judge err by imposing uplifts contrary to s 18 of theSentencing Act? [75]Did the Judge apply a youth discount that was insufficient? [84]Should the orthodox sentencing approach set out in Moses be appliedto this case? [93]Result [98]Introduction[1] Mr A was charged with sexual offending against his half-sister, B, on threeoccasions during their childhood.1 Following a jury trial in the Rotorua District Court,he was found guilty of:(a) one charge of sexual violation by unlawful sexual connection;2(b) three charges of indecent assault on a young person;3(c) two charges of sexual connection with a young person;4 and(d) one charge of indecent assault.5[2] On 2 February 2022, Mr A was sentenced by Judge Hollister-Jones tofour years and nine months' imprisonment.6[3] Mr A appeals both his conviction and sentence.The offending[4] Mr A's sexual offending involved three incidents spanning a five-year period.They occurred in 2012, 2014 and 2017.2012 incident — indecent assault on a young person, sexual connection with a youngperson and sexual violation by unlawful sexual connection[5] The first incident was in 2012 when B was 12 years old. Mr A was almost15 years old. At this time B typically lived with her mother in Tauranga.1 The appellant's name has not been used, despite it not being suppressed, because identifying himby name would risk breaching the complainant's statutory protections under s 203 of theCriminal Procedure Act 2011 due to the nature of the offending and his relationship to thecomplainant. See H v R [2019] NZSC 69, [2019] 1 NZLR 675 at [54]–[58].2 Crimes Act 1961, ss 128(1)(b) and 128B. Maximum penalty of 20 years' imprisonment.3 Section 134(3). Maximum penalty of seven years' imprisonment.4 Section 134(1). Maximum penalty of 10 years' imprisonment.5 Section 135. Maximum penalty of seven years' imprisonment.6 R v [A] [2022] NZDC 1588 [District Court judgment].[6] This incident took place during the school holidays in April. Mr A and B werestaying with their paternal grandparents in Tauranga. They shared a bedroom withseparate single beds.[7] One night when they were in bed, Mr A asked B a number of personal,sexualised questions. He then got into her bed. He asked her if she wanted to"try some stuff". She asked him what he meant. He suggested that they try having sex.[8] B refused. She said she did not want to and she "didn't want to get pregnant".Mr A persisted. B asked him if he did this to his other sisters. He said he did notbecause they were older and fully related to him, whereas she was only his half-sister.[9] Mr A told her he would get some Glad Wrap because he did not have anycondoms. He left the room but returned saying he could not find any Glad Wrap.[10] Mr A got into B's bed. She was falling asleep. He started touching her breasts.He then pulled her shorts and underpants off. He rubbed her genitalia. Then hestopped and left the room. B put her shorts and underwear back on. She began to doze.[11] Mr A returned to the bedroom. He had soap on his penis. He told B that hewas going to put it in her "bumhole" so she would not get pregnant. B told him thatshe did not want to do this. In an attempt to dissuade him she suggested they do itanother time. Mr A told her she would be fine. He flipped her over onto her front.He pulled down her pants and underwear. He forced his penis inside her anus.He thrust it back and forth despite B pleading with him to stop and telling him it hurt.She was in extreme pain.[12] Mr A told her this was normal. He instructed her to be quiet or she wouldwake up their grandparents. She said that she would scream. He pushed her head intothe pillow and told her to scream into it. Only when she threatened to do so did hethen stop.[13] B ran to the bathroom. Her anus was bleeding. When she returned to thebedroom Mr A told her to promise not to tell anyone.[14] In respect of these events Mr A was convicted of indecent assault on ayoung person, sexual connection with a young person and sexual violation byunlawful sexual connection.2014 incident — indecent assault on a young person and sexual connection with ayoung person[15] The second incident took place in May 2014. By this time B was around14 years old and Mr A was aged 16 or 17. At the time he was living with his father.[16] One weekend, believed to have been during the duck shooting season, B wentto stay at her father's house. She and Mr A were sleeping in the same room insingle beds.[17] One night B was woken by Mr A. He had pushed his bed next to hers.He rubbed her shoulders down to her bottom. B pretended she was asleep. Mr A tookB's hand and attempted to wrap it around his erect penis. She tried to pull her handaway. Mr A held it there. He then tried to make her move her hand up and down onit. She eventually managed to pull her hand away. She pretended she was asleep.[18] Mr A started playing with B's breasts. He pulled his hand away when shemoved. Then he slowly put his hand beneath B's underwear. He moved his handtowards her genitalia. B jammed her legs together and rolled onto her stomach. Mr Awas nevertheless able to put his hand back under her underwear and rub her genitalia.[19] B pulled his hand away. He tried to touch her genitalia again until B made himaware she was awake. She asked him why his hands were in her pants. He apologised.He claimed he had been asleep and did not know. She asked him to move his bedaway. He said he was too tired and remained where he was.[20] In respect of these events Mr A was convicted of two charges ofindecent assault on a young person and sexual connection with a young person.2017 incident — indecent assault[21] The last incident was in February 2017. B was 17. She had moved into herfather's house. Mr A was 19. He was still living there with his father.[22] One weekend B was housesitting at the house of one of her father's friends.She was staying in a self-contained sleepout at the address. Mr A and his partner werestaying in the main house.[23] One night after Mr A had a few drinks he entered B's bedroom. She asked himto leave. Mr A said he did not want to and would just sleep in B's room. B told himto go away. He lay on the bed next to her and continued talking.[24] B was about to turn the lights off when Mr A asked her to show him hernipple piercing. He promised he would then go away. B refused. She told him to getout so she could go to sleep. She rolled over but felt Mr A hugging her from behind.He was rubbing her back and bottom with his hand.[25] B then felt Mr A playing with her nipple piercing and grabbing her breast. Shetold him to go away. He said "fine" but remained on the bed. B fell asleep. She waslater woken up when she felt Mr A's erect penis pressing against her bottom. She leftthe bedroom and slept on the couch.[26] In respect of these events Mr A was convicted of a single charge ofindecent assault (by putting his hand on her breast).[27] B disclosed the offending in 2018.The trial[28] The case at trial turned on the credibility of B. Apart from B's own testimonythere was limited other evidence which the Crown relied on to support its case. Thisincluded evidence Mr A had asked B in a Snapchat message for a "titty pic".The defence suggested that he did so at the request of a friend. The Crown mentionedit in closing but expressly conceded it might not, on its own, take the jury very far.The Crown also noted Mr A's repeated answers to the interviewing police officer thathe was unable to remember certain key aspects of the 2012 incident when these wereput to him. They included getting Glad Wrap, touching B's breasts and vagina, placingsoap on his penis, anally penetrating her and B threatening to scream.[29] Mr A elected not to give evidence at trial. His attack on B's credibility andreliability was, however, comprehensive. It consisted of two primary strategies.[30] The first was to emphasise the intrinsic unlikelihood of the offendingoccurring as alleged, drawing on evidence of the timing of the incidents, the presenceof others at the relevant times and, relatedly, the absence of any opportunity for Mr Ato offend as claimed due to the sleeping arrangements within the father's household.[31] The evidence was that B and Mr A stayed at their father's home frequently,especially at weekends and during school holidays. The 2014 offending occurred afterMr A had moved to his father's home but before B followed. In her evidentialinterview B said she was unsure when the offending occurred but believed it may havebeen during the duck shooting season, which starts at the beginning of May.B remembered that staying at the house at the time were herself, Mr A, their father,her two sisters, and some friends. On her account the house was full and, as aconsequence, she found herself sharing a bedroom with Mr A.[32] This version of events was directly challenged in cross-examination and bycalling defence evidence on the point. First, evidence was led that Mr A routinelyspent the first week or two of the duck shooting season with his stepfather inPalmerston North and, as a result, was seldom if ever present on opening weekend,something which B accepted in cross-examination. Secondly, one of his sisters, E,said that she and her sister, K, never visited their father during the duck shootingseason because K was vegan and E did not enjoy the sport. Evidence was given thatthe house was not full at this time of the year because visitors tended to stay incampervans. K also gave evidence that the girls, including B, never slept in the sameroom as Mr A.[33] As for the last incident in 2017, Mr A's partner gave evidence that he spent thenight with her in the main house and not with B in the sleepout.[34] The second defence strategy was to emphasise the intrinsic unlikelihood of B'saccount given her continuing relationship with Mr A. It was common ground thatfrom an early point in their childhoods, Mr A and B were close and enjoyed, for themost part, a healthy and happy friendship. B readily accepted she would seek out andenjoy Mr A's company. They shared common interests in shooting, hunting andfishing. Frequently, they went on extended overnight tramps together to indulge thoseinterests. On none of those excursions was there any suggestion Mr A madesexual advances towards B. Furthermore, it was B's decision to move into theirfather's home despite knowing Mr A was also living there. The two of them went onroad trips together, even after B had disclosed the offending to friends.[35] In cross-examination it was clear that B still loved her brother. She describedhim in evidence as a "really good brother". B conceded that some details of herevidence might not have been correct but she was steadfast that in all material respectsher evidence was true. She said it was what had happened to her and she had to finallytell the truth.[36] The jury returned verdicts of guilty on all charges. In doing so it must haveaccepted B's account, notwithstanding the contrary evidence given by thedefence witnesses, including members of B's own family.Approach on appealAppeal against conviction[37] Mr A's appeal against conviction is brought under s 232 of theCriminal Procedure Act 2011 (the CPA). This Court must allow the appeal if it issatisfied that the jury's verdict was unreasonable, or that a miscarriage of justice hasoccurred for any reason.7 A miscarriage of justice includes any error, irregularity, oroccurrence in or in relation to or affecting the trial that:87 Criminal Procedure Act, s 232(2)(a) and (c).8 Section 232(4).(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.[38] A real risk arises if there is a reasonable possibility that a more favourableverdict might have been delivered if nothing had gone wrong.9Appeal against sentence[39] Mr A's appeal against sentence is brought under s 250 of the CPA. This Courtmust allow the appeal if it is satisfied that for any reason there was an error in thesentence imposed on conviction and a different sentence should be imposed.10 Thefocus is on the sentence imposed, rather than the process by which it is reached.11The Court will not intervene where the sentence is within the range that can properlybe justified by accepted sentencing principles.12 To this end the concept of a"manifestly excessive" sentence is well-engrained and there is no reason not to use itwhen considering s 250.13Issues on appeal[40] The issues raised by Mr A on his appeal against conviction are:(a) whether leave to admit fresh evidence on appeal from Mr A's fathershould be granted; and(b) if admitted, whether it creates a reasonable possibility of a differentverdict.[41] On his sentence appeal Mr A raises three issues:(a) whether the Judge erred by imposing uplifts contrary to s 18 of theSentencing Act 2002;9 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J.10 Criminal Procedure Act, s 250(2).11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].12 At [36].13 At [35].(b) whether the Judge applied a youth discount that was insufficient; and(c) whether the orthodox sentencing approach set out in Moses v R shouldnot be applied to this case.14[42] We first turn to consider the two questions posed by the conviction appeal.Should leave be granted to admit further evidence on appeal given by Mr A'sfather?[43] Mr Munro, for Mr A, filed an affidavit sworn by B and Mr A's father, G. Hisevidence goes directly to the issue of whether Mr A and B shared a bedroom at thetime of the 2014 incident. The thrust of counsel's argument is that if this evidence wasbefore the jury, it would have constituted further ammunition for the jury to haverejected B's evidence that the sexual assault occurred when she was sharing a bedroomwith Mr A. This, in turn, could affect the verdict on not only the charges relating tothat event, but also the other incidents before and after — the verdicts on those chargesbeing supported by the jury's assessment of B's credibility and reliability.[44] The admission of further evidence on appeal is determined by the applicationof a sequence of tests:15If the evidence is not credible, it should not be admitted. If it is credible, thequestion then arises whether it is fresh in the sense that it is evidence whichcould not have been obtained for the trial with reasonable diligence. If theevidence is both credible and fresh, it should generally be admitted unless thecourt is satisfied at that stage that, if admitted, it would have no effect on thesafety of the conviction. If the evidence is credible but not fresh, the courtshould assess its strength and its potential impact on the safety of theconviction. If it considers that there is a risk of a miscarriage of justice if theevidence is excluded, it should be admitted, notwithstanding that the evidenceis not fresh.[45] We turn to address these tests.14 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.15 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120], cited with approval in Ellis v R [2021]NZSC 77 at [29] and [33].Is G's evidence credible?[46] The first question is whether G's evidence is sufficiently credible to admit.[47] We accept Mr Munro's submission that it is. Part of his evidence was given byway of affidavit. The remainder was given orally through cross-examination andre-examination at the appeal hearing. There was no real challenge to the credibility ofhis evidence, although Mr Carruthers, for the Crown, did seek to impugn his reliability.However, that is a different inquiry. The reliability of his evidence goes to its cogency,a point to which we shall return.[48] For present purposes, we are satisfied G's evidence is sufficiently credible forit to be admitted.Is G's evidence fresh?[49] The next question is whether G's evidence is fresh — that is whether theevidence could not have been obtained for the trial with reasonable diligence.[50] Mr Munro submitted that G's evidence could not have been obtained withreasonable diligence. He submitted that trial counsel did in fact attempt to obtainevidence from Mr A's father. On this point he referred to G's affidavit, where he says:I first heard of [B]'s allegations from my sister and mother. I was nevercontacted by the Police at the time [B] made the complaint. In fact, I havenever had any contact with anyone from the Police about the allegations.I was very distressed by the allegations and how they involved two of mychildren. I did feel very conflicted between [Mr A] and [B], and simplywanted to stay out of the whole mess.[Mr A's] lawyer, Andrew Hill, did contact me in July 2020 to see if I wouldgive a statement about the sleeping arrangements mentioned above andwhether I had seen anything inappropriate between [Mr A] and [B]. At thetime I told him that I was not interested in getting involved because I felt likeI was having to pick between my children, both of whom I love dearly. Thatwas a choice I really was not comfortable making.[51] G also says that after Mr A was convicted, he spoke with Mr Hill about"the detail of what had been alleged". He says he could not recall Mr A and B eversharing a room at his house. He thus felt "compelled" to now give evidence afterhearing of the "duck shooting allegation".[52] We accept that in the lead up to the trial, counsel took reasonable steps in anattempt to obtain G's co-operation to give evidence. G refused. He chose not to beinvolved for the reasons he gave. It is only after being informed of the substance ofthe allegations in greater detail after the trial and convictions that he indicated apreparedness to provide information relevant to the charges, and to give evidence.[53] G could have been compelled to appear as a defence witness at trial. Butdefence counsel had no information about whether he could give any relevantevidence, or about the content of any evidence he could give. In these circumstancesit was not realistic to call him as a witness. We are satisfied that the evidence that Ghas now provided could not have been obtained before the trial with reasonablediligence.[54] It follows that G's evidence is fresh.Conclusion on admissibility[55] G's evidence is thus both credible and fresh. We consider that at this stage, itcannot be summarily dismissed as having no potential effect on the safety of aconviction.[56] We accordingly grant leave to admit G's evidence on appeal.Does the admission of Mr A's father's evidence create a reasonable possibility ofa different verdict?[57] The next issue is therefore whether the admission of G's evidence creates areasonable possibility of a different verdict.[58] Mr Munro submitted that it does. He argued that G's evidence is "concrete" inthat he said that he was present at the time of the 2014 incident and that Mr A and Bnever shared a bedroom at his house. This can be contrasted with Mr A's ownstatements and that of his sister, E, both of whom were more equivocal.[59] G's position, as expressed in most of his affidavit, was categorical. He deposedthat:Whenever [B] would stay at my house, she always had her own room and[Mr A] always had his own room. They never shared a room.I do recall hosting friends for duck shooting season at the house and on otheroccasions However, [Mr A] and [B] never shared a room.If [Mr A] and [B] were at the house together, they always had their own rooms.I can categorically say that [E] and [K] were never at my home for duckshooting as they both detest this activity. I understand that [B] told the Courther sisters were at my home at this time. That is not correct.(Emphasis added.)[60] However, the final passage of his affidavit is slightly more equivocal. He says:When I found out about the duck shooting allegation, I felt compelled to swearthis affidavit. I do not ever recall [B] and [Mr A] sharing a room at my house.They have always had their own rooms even when I had friends stayingover (Emphasis added.)[61] Mr Carruthers cross-examined G on this point. He accepted that the correctposition was that he could not recall Mr A and B sharing a bedroom:Q. So, of those two options Firstly categorically they never shared aroom — secondly I don't remember them sharing a room. Which oneis it?A. I don't recall them sharing a room.[62] Mr Carruthers then put to him that it was possible they may have shared abedroom on this occasion, even if he did not remember it. This question introducedan element of confusion on G's behalf, leading counsel to reframe the proposition asfollows:Q. The best you can say is you just don't remember them sharing aroom?A. Correct.[63] Given this concession, the issue for our determination is whether G's evidencethat he was present in the house at the time of the 2014 incident and could not recallMr A and B sharing a bedroom materially adds to the trial evidence to such an extentthat doubt is cast on the safety of the convictions. For that reason, it is necessary toexamine the trial evidence on this point.[64] First is Mr A's evidential police video interview. He denied that the2014 incident occurred as alleged. He said that he "never was in a spare room"because he had his own room. He said he was in his room that night.[65] The second is E's evidence. She said that to her knowledge, there were nooccasions when Mr A and B had to share a bedroom. She also said that contrary toB's claim, she and her sister K were never present at the house during theduck shooting season. That assertion, however, needs to be weighed against heracceptance in cross-examination that she was unable to recall which weekends shevisited G's home in 2014.[66] Finally there was B's evidence on the point. The thrust of her evidence wasthat the house was full at the time Mr A shared a bedroom with and offended againsther. Although she did not know the exact date, the fact the house was busy meant itmight have been around duck shooting season.[67] This was the state of the evidence on which the jury returned verdicts of guiltyon the charges relating to the 2014 incident. We accept Mr Carruthers' submissionthat it follows that the jury must not have believed Mr A's denials, instead finding Bto be credible and reliable. The Crown closed on the basis that it was for the jury todetermine whether it was central to B's allegations that the incident occurred duringduck shooting season or that K and E were present. The jury must have accepted thaton this particular occasion, whether that was during duck shooting or some other time,Mr A and B did share a bedroom, even if that was not typically the case. The coreaspects of B's allegations must have been found to be reliable.[68] The thrust of both G and E's evidence is that neither could recall Mr A and Bsharing a bedroom. It does not follow that the jury was bound to accept that there wasno opportunity for the offending to occur as alleged. It was open to the jury to accept,as it plainly did, that E was simply unaware of them ever sharing a bedroom.[69] The same line of reasoning is available when dealing with G's evidence.Although he was present during the 2014 incident, it would be open to the jury to findthat he also was unaware of the actual sleeping arrangements. He accepted incross-examination that he had no reason to suspect anything inappropriate hadoccurred between Mr A and B. He trusted them to be alone together. He also acceptedthat at the time Mr A and B were old enough to put themselves to bed and thatsometimes they might have gone to bed later than him. The following exchange isrelevant:Q. But if they did go to bed later than you, you wouldn't know whichbedrooms they went to bed in would you?A. Yes.Q. Because you're already in bed asleep?A. Yeah well — yes true.Q. And if you had friends around to watch the game? I don't mean to befacetious, but you wouldn't necessarily duck out to tuck [B] and[Mr A] in?A. No.Q. You never thought — oh no [Mr A] might be in [B's] room.A. No.Q. So, it's not really something that occupied your mind at all?A. No, well it was just that the relationship we had was — well a lot ofpeople they'd come with me — we'd go and see friends or do thingstogether and we were always together — I mean yeah it was enjoyed— that was a great time.[70] Taking these concessions into account, we consider that the evidence of G atits highest establishes that he was not aware of Mr A sharing a bedroom with B, andwould not have expected this to occur. But he would not necessarily have been awareof their sleeping arrangements. He had no reason to supervise his children's sleepingarrangements. Nor did he actually did so. If they had shared a room, that is unlikelyto be something he would have been concerned about or had any particular reason toremember. Evidence to this effect, even if accepted by the jury, would not providethem with any material assistance in determining what happened in 2014. Nor wouldit shed any light on events in 2012 or 2017.[71] This case is readily distinguishable on its facts from Cassidy v R,16 whichMr Munro cited for the proposition that a failure to call a critical witness could lead toa miscarriage of justice. In Cassidy the prosecution case was that the appellant stoppedhis car while driving to a party and sexually violated the complainant.17 Trial counselfailed to call a witness who could give evidence that she was in the car at the time andthat no sexual conduct occurred.18 This Court determined that the witness' evidencedirectly supported the appellant's denials.19 The failure to lead it at trial led to a riskof a miscarriage of justice and the appeal was allowed.20[72] The present case is quite different. G's evidence does not directly supportMr A's denial of the 2014 incident, or shed any direct light at all on the 2012 and 2017incidents. Although it provides some limited support for the evidence of otherwitnesses on the likelihood of Mr A and B sharing a bedroom in 2014, and thus mightbe relevant to the jury's assessment of B's reliability and Mr A's opportunity to offend,it is not evidence that the offending did not occur as described. Ultimately, the jurybelieved B to the exclusion of other apparently contrary evidence, including theevidence of other family members. We do not consider that there is any real prospectthat the limited evidence that G could have provided about sleeping arrangements, assummarised above, could have led the jury to reach a different assessment and arriveat a different verdict in relation to the 2014 charges. There is even less prospect thatit would have led to a different result on the 2012 and 2017 charges.[73] It follows that there is no real risk that the jury would have arrived at a differentverdict if presented with G's evidence.16 Cassidy v R [2019] NZCA 80.17 At [4].18 At [15]–[16].19 At [25].20 At [29]–[31].[74] Mr A's appeal against conviction must fail.Did the Judge err by imposing uplifts contrary to s 18 of the Sentencing Act?[75] We next turn to Mr A's appeal against sentence.[76] On the usual approach to sentencing, no issue is taken with the Judge adoptinga starting point of six years and six months' imprisonment on the charge of sexualviolation by unlawful sexual connection in relation to the 2012 incident.21 The Judgethen imposed uplifts totalling 21 months to account for the remainder of theoffending.22 Eighteen months of that related to the other charges relating to the2012 incident, and the charges relating to the 2014 incident.23 The remaining balanceof three months related to the 2017 incident.24[77] Mr A's first ground of appeal is that the Judge erred by imposing upliftscontrary to s 18 of the Sentencing Act. The particular uplifts criticised are the18 months relating to the 2012 and 2014 incidents.[78] It is not disputed that these uplifts were inconsistent with s 18, which providesthat:25No court may impose a sentence of imprisonment on an offender in respect ofa particular offence, other than a category 4 offence, or a category 3 offencefor which the maximum penalty available is or includes imprisonment for lifeor for at least 14 years, if, at the time of the commission of the offence, theoffender was under the age of 18 years.[79] This Court in Diaz v R has said that the application of an uplift to a sentence ofimprisonment is treated as a sentence of imprisonment within the meaning of s 18:26It would be inconsistent with the policy underpinning s 18 for the Court touplift a sentence of imprisonment by reference to a charge which, pursuant tos 18, could not itself result in a sentence of imprisonment. Such an upliftwould result in the young person spending (additional) time in prison as aresult of the less serious charge: the very thing that s 18 is intended to preclude.21 District Court judgment, above n 6, at [29].22 At [30]–[34].23 At [30]–[32].24 At [33].25 Sentencing Act 2002, s 18(1).26 Diaz v R [2021] NZCA 426 at [32] per Thomas and Wylie JJ. See also Goddard J's comments tothat effect at [59].[80] Mr A was under the age of 18 years at the time of the 2012 and 2014 incidents.The uplifts accounting for charges relating to those events were contrary to s 18.27 Itfollows that the uplifts totalling 18 months should not have been imposed. Instead, incircumstances where Mr A was sentenced to imprisonment or home detention on othercharges, the correct approach would have been for Mr A to have been convicted anddischarged on those charges.[81] However, at the time of the 2017 incident, Mr A was 19 years old. No issue istaken with the three-month uplift applied by the Judge on the indecent assault chargerelating to that incident. That is understandable. Even if the offending underlying thatcharge would not necessarily attract a sentence of imprisonment on its own, it must beviewed in the context of Mr A's other offending (at least that for which a sentence ofimprisonment can be imposed). This was a separate and unrelated incident ofoffending five years after the 2012 incident. It must be factored into the end sentencein some way. The application of a three-month uplift, which is then subject to personalmitigating factors, both recognises that and takes into account totality. The Judgecannot be said to have erred by imposing it.[82] It follows that the proper starting point is six years and nine months'imprisonment.[83] The sentence appeal must be allowed on this basis. However, that is not theend of the inquiry because it is submitted that the discounts for youth were insufficient.We thus turn to discuss that ground.Did the Judge apply a youth discount that was insufficient?[84] Mr A's next ground of appeal is that the Judge applied a youth discount whichwas insufficient.27 The Judge applied an uplift of six months on the charges of indecent assault on a young personand sexual connection with a young person relating to the 2012 incident. The Judge then applieda further uplift of 12 months on the charges of indecent assault on a young person and sexualconnection with a young person relating to the 2014 incident.[85] The Judge applied a 37.5 per cent discount for Mr A's youth and rehabilitativeprospects, notwithstanding his continued denial of the offending.28 He then applied afurther five per cent discount for previous good character, recognising that Mr A hadbeen a "fully-functioning member of society" in the five years following the finalincident of offending.29 The total discount for personal mitigating factors was42.5 per cent.30[86] Mr Munro first submitted that the Judge should have applied differentyouth discounts for the 2012 and 2017 incidents. This is because Mr A was 14 at thetime of the 2012 incident and a comparatively greater youth discount is warranted.[87] We do not regard this point as determinative. The focus on appeal is whetherthe end sentence was manifestly excessive. Theoretically, the Judge could havereached an appropriate sentence by applying a global youth discount taking intoaccount the age differentials between the first and third sets of offending. The issue iswhether he did.[88] Youth can be a highly significant mitigating factor.31 Discounts are not subjectto a fixed range or a prescribed outer percentage.32 Teenagers between 14 and 16 whohave committed serious sexual offences have been given discounts ranging between30 and 50 per cent.33[89] Mr Munro referred to two cases where 50 per cent youth discounts wereallowed by this Court:(a) The first is Martin v R.34 There the appellant sexually offended againsttwo young girls.35 The sentencing Judge applied a 50 per cent creditfor youth for the portion of the offending occurring when the appellant28 District Court judgment, above n 6, at [36]–[41].29 At [42].30 At [43].31 Rolleston v R (No 2) [2018] NZCA 611, [2019] NZAR 79 at [35].32 At [35].33 At [35].34 Martin v R [2015] NZCA 533.35 At [6]–[15].was between 14 and 15 years old.36 The appellant argued on appealthat this discount was insufficient in light of fresh evidence that he wassexually abused as a child.37 This Court considered that it would bedifficult to justify an additional credit on the basis of thefresh evidence.38 If anything, the credit given by the sentencing Judge"could be seen as generous".39(b) The second is R v Parata.40 There the appellant offended against aneight year old boy when he was 16 years old.41 This Court consideredthat the sentencing Judge should have made some allowance for theoffending involving "some element of experimentation and reducedappreciation compared with the understandings of a mature adult".42There was also room to recognise the success that the appellant madeof his life over the 10 years before the criminal process began and theentirely favourable pre-sentence report.43 The Court concluded that"this was an occasion for a merciful sentence".44 A reduction of50 per cent was given.45[90] While the discounts in both those cases were described as "generous" and"merciful", we consider that a similar level of recognition is called for here, albeit forslightly different reasons.[91] The 2012 offending, while very serious indeed, has characteristics about itwhich might be described as naïve. The search for Glad Wrap in substitution for acondom and the lubricating of the penis using bathroom soap are features which reflectMr A's age and limited life experience. The factor of youth, on its own, is deservingof greater recognition than that given by the Judge. We consider that a discount of 5036 At [35].37 At [36].38 At [41].39 At [41].40 R v Parata CA72/01, 21 June 2001.41 At [2].42 At [10].43 At [10].44 At [11].45 At [12].percent is justified. Combined with an additional five percent discount forrehabilitative potential, the end sentence comes to three years' imprisonment.[92] It follows that we consider the sentence appeal should also be allowed on thisbasis. The question of whether we should take a different approach to thefinal sentence is addressed next.Should the orthodox sentencing approach set out in Moses be applied to this case?[93] Mr A's final ground of appeal is that the Judge erred by applying the Mosessentencing methodology.46[94] Mr Munro submitted that the sentencing Judge ought to have followed thealternative approach to sentencing young offenders suggested in Goddard J's separatereasons in Diaz .47 This approach reframes the sentencing methodology to firstconsider whether home detention is the least restrictive sentencing outcome availableto a youth offender.48 Mr Munro submitted that the sentence imposed by the Judge ismanifestly excessive because had the alternative methodology been adopted, asentence of home detention would have been imposed.[95] We do not consider that this is an appropriate case in which to consider whetherthat alternative approach to sentencing young offenders should be adopted. In DiazGoddard J said that the desirability of adopting that approach would need to beconsidered by the Permanent Court, with the benefit of full argument.49 It would notbe appropriate for this Divisional Court to adopt the alternative approach before it hasbeen considered by the Permanent Court. Nor did we hear full argument on thealternative approach: in light of that indication in Diaz, the Crown's submissionsproceeded on the basis that the desirability of adopting the alternative approach wasnot in issue in the present appeal.46 Moses, above n 14.47 Diaz, above 26.48 At [61].49 At [70].[96] We also consider that there are important differences between thecircumstances of this case and Diaz which mean that even if the alternativemethodology were applied it would not necessarily produce a different outcome. Thepresumption of imprisonment in s 128B(2) of the Crimes Act 1961 applies to thesexual violation charge arising out of the 2012 incident, reflecting the seriousness ofsuch offending. Section 16 of the Sentencing Act is subject to that presumption.50 Therelevant offending in respect of which a sentence of imprisonment may be imposed(the 2012 and 2017 incidents) involved two separate incidents of serious sexualoffending against the same victim five years apart. Unlike in Diaz, this was not anisolated and impulsive response by a young person to a fast-unfolding situation,encouraged by outside pressures of the kind to which young people are especiallysusceptible.51 Nor is the same degree of remorse apparent in the present case.52[97] This ground of appeal fails, although Mr A succeeded on his other grounds ofappeal and the appeal must be allowed on that basis.Result[98] The application to adduce further evidence is granted.[99] The appeal against conviction is dismissed.[100] The appeal against sentence is allowed:(a) On the charge of sexual violation by unlawful sexual connection(Charge 3),53 the sentence of four years and nine months' imprisonmentis quashed and substituted with a sentence of three years'imprisonment.(b) On the charge of indecent assault in 2017 (Charge 7:CRN 19063000858) the sentence of one year's imprisonment to beserved concurrently is upheld.50 Sentencing Act, s 16(3)(a).51 Diaz, above n 26, at [40].52 At [41].53 The charge numbers are references to the Crown Charge Notice dated 17 May 2019.(c) On the remainder of the three charges of indecent assault on a youngperson and two charges of sexual connection with a young person,54Mr A is convicted and discharged.Solicitors:Tucker & Co, Auckland for AppellantCrown Law Office, Wellington for Respondent54 Charges 1, 2, 4, 5 and 6 of the Crown Charge Notice dated 17 May 2019.