A (CA41/2017) v R [2018] NZCA 136

A (CA41/2017) v R [2018] NZCA 136 [3 May 2018]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA41/2017[2018] NZCA 136BETWEEN A (CA41/2017)AppellantAND THE QUEENRespondentHearing: 15 February 2018Court: Cooper, Ellis and Katz JJCounsel: E A Hall and J R Spelman for AppellantK S Grau for RespondentJudgment: 3 May 2018 at 3 pmJUDGMENT OF THE COURTA The application for an extension of time to file the notice of appealis granted.B The appeal against conviction is dismissed.C The appeal against sentence is dismissed.D Order prohibiting publication of name, address, occupation or identifyingparticulars of the appellant pursuant to s 200 of the Criminal ProcedureAct 2011.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)Introduction[1] The appellant was found guilty, following a jury trial in the District Court, ofone representative charge of unlawful sexual connection with a female under 12. Theoffending occurred over an extended period when the complainant, his step-daughter,was between the ages of approximately four and ten. The jury found the appellantnot guilty in respect of a further specific charge of unlawful sexual connection withthe complainant (digital penetration). He was sentenced to seven and a halfyears' imprisonment.1[2] The appellant appeals his conviction on two grounds. First, he says thatthe verdict was unreasonable on the basis of the evidence. Second, he says thatthe guilty verdict for the representative charge was inconsistent with the verdict ofnot guilty in respect of the specific charge.[3] The appellant also appeals his sentence. He submits that the Judge erred bysetting a starting point that was too high, and failing to afford a discrete discount forhis previous good character and lack of relevant previous convictions.[4] The notice of appeal was filed out of time. The Crown does not oppose anextension. The delay is short and adequately explained. We are satisfied that it is inthe interests of justice to grant an extension, and we do so.1 R v [A] [2016] NZDC 18962.BackgroundThe representative charge[5] The complainant's evidence at trial was that the offending began when she wasaged between three and five and continued until she was about ten. The appellantwould come into her bedroom (which she shared with other children) at night and"start doing the dirty stuff". In particular, he would touch her breasts, try to kiss her,put his hands under her pyjamas and put his fingers into her vagina. He would alsotry to put his penis "inside [her] bottom". The appellant would call her "baby" andtell her not to tell anyone as he did these things.[6] Other children would often be sleeping in the bedroom (in bunk beds) whenthese incidents occurred. When her step-father did these things, the complainant saidshe would "start getting scared and freak out" and her body would shake. His actions"made [her] feel disgusting". The offending happened "a lot" but, as the months wentby, he would "just do it every now and again". In response to questioning, thecomplainant said that the appellant had offended against her "most probably" morethan 20 times.[7] The appellant gave evidence. He said that he never touched the complainantsexually. The appellant's daughter slept in the same bedroom as the complainant atthe last house in which the alleged offending had occurred (the family movedfrequently). She gave evidence that she had never seen anything untoward happen.She accepted, however, that she could not know what was happening when she wasasleep (although she did say the bunk beds were quite noisy).The specific charge[8] The specific charge (in respect of which the appellant was acquitted) related tothe last time that he was alleged to have offended. The complainant's evidence wasthat one evening, in her bedroom, he did the same things as he had previously(including digital penetration) "until he heard the kids moving and he thought theywere going to wake up so he [ran] out of the room ". Afterwards, the complainantsaid that she went to her mother's room because she could not sleep. The appellant atthat time was in the kitchen drinking coffee before going to work.[9] It was put to the complainant in cross-examination that she had said in herevidential video interview that the last time the appellant offended was on a night whenthe police came to their home in response to an incident where the boyfriend of theappellant's daughter had caused trouble. However, other evidence (from apolice officer and the appellant's employer) established that the appellant, who didshift work, had gone to work at 5 pm that day and not returned home until thefollowing morning. He would therefore not have been home at the time when thecomplainant said that the offending had occurred.[10] The complainant denied that she was lying about the incident. She said thatshe was telling the truth about what had happened, but could have got "mixed up"about when it occurred because she "wasn't thinking straight".[11] In re-examination, the complainant stated that the night the appellant wasmaking coffee in the kitchen before going to work was different to the night when thepolice had come to the house. In essence, her evidence was that she may have beenwrong about the date when the last incident of sexual abuse had occurred.Appeal against conviction[12] An appeal against conviction under s 229 of the Criminal Procedure Act 2011(the Act) must be allowed if the court is satisfied that the jury's verdict wasunreasonable, or a miscarriage of justice has occurred for any reason.2 In any othercase the appeal must be dismissed.3Was the verdict unreasonable, having regard to the evidence?[13] The jury's verdict will only be "unreasonable" if the court is satisfied that nojury, applying the criminal standard of proof, could reasonably have reached a guilty2 Criminal Procedure Act 2011, s 232(2).3 Section 232(3).verdict on the evidence.4 In R v Owen, the Supreme Court endorsed the followingprinciples identified by this Court in R v Munro:5(a) The appellate court is performing a review function, not one ofsubstituting its own view of the evidence.(b) Appellate review of the evidence must give appropriate weight to suchadvantages as the jury may have had over the appellate court.Assessment of the honesty and reliability of the witnesses is a classicexample.(c) The weight to be given to individual pieces of evidence is essentiallya jury function.(d) Reasonable minds may disagree on matters of fact.(e) Under our judicial system the body charged with finding the facts isthe jury. Appellate courts should not lightly interfere in this area.(f) An appellant who invokes s 385(1)(a) [now s 232(2)(a) of the Act]must recognise that the appellate court is not conducting a retrial onthe written record. The appellant must articulate clearly and preciselyin what respect or respects the verdict is said to be unreasonable andwhy, after making proper allowance for the points made above, theverdict should nevertheless be set aside.[14] In R v Patel, recently reiterated by this Court in P (CA84/2017) v R,6 the Courtstated:7[27] In R v Munro this Court discussed the circumstances in which averdict based largely on credibility findings can be overturned on the basis ofunreasonableness. The Court indicated that, where an appellate court is in nobetter position than the jury to assess the credibility of witnesses, it is notlikely to be easy for an appellant to show that a verdict is unreasonable. Thisis because, in many cases, assessing credibility from a written transcript willnot achieve a better result than that achieved by a jury, which has theadvantage of hearing and seeing the witnesses in the course of the whole trial.Verdicts based on credibility are likely to be overturned only where there iscontemporary evidence which clearly contradicts the witness or in casesof glaring improbability. Inconsistencies alone are unlikely to reachthat standard.[15] Ms Hall for the appellant submitted that the evidence is insufficient to supportthe jury's finding of guilt beyond reasonable doubt on the representative charge. Inparticular:4 Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [14]–[15].5 At [13], citing R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.6 P (CA84/2017) v R [2017] NZCA 319 at [49].7 R v Patel [2009] NZCA 102 (citations omitted).The allegation is a broad brush allegation without any real detail. No attemptwas made by the Crown to isolate locations or specificity of any type.[16] Ms Hall accepted that, particularly with cases of alleged sexual offendingagainst children, representative charges can be appropriate where it is not possible todiscern a discrete incident or allegation. She submitted, however, that the use of arepresentative charge does not mean that there need be no attempt to define the limitsor occasions when offending had occurred. In this case, the evidence at trial was saidto be insufficiently detailed to support a conviction. In particular:There was no description of how [the appellant] would physically manoeuvrehimself, how his hand was able to do that, where she would be sleeping, thebed arrangements, the room layout, which specific houses this occurred in orany other detail. The core allegation is devoid of detail other than thedigital penetration.[17] Ms Hall noted that the family had lived in six different properties, butno attempt had been made to identify the specific properties where the offending hadoccurred, for example by describing details of the decoration or layout of the bedroom.The allegations were so general, Ms Hall submitted, that the appellant was not fairlyinformed of the case he had to meet. Evidence of such a general nature, she argued,is simply insufficient to discharge the onus of proof beyond reasonable doubt.Something more is required to prove a charge beyond reasonable doubt.[18] A similar argument was advanced in T (CA561/2014) v R.8 T was convictedon 29 charges, most of which related to sexual and violent offending against his wifeand children. On appeal, his counsel submitted that the nature of therepresentative charges for unlawful sexual connection and rape of his wife were toogeneral and made the trial unfair. The first representative charge was one ofsexual violation by rape over a 12-year period in the lower North Island. The secondrepresentative charge was for sexual violation by unlawful sexual connection over thesame period and in the same geographic location. The charges were intended to coverT's wife's evidence about on-going episodes throughout the relevant period ofnon-consensual sex. She described repeated occasions where she was forced to giveT oral sex and he would then proceed to rape her by forced sexual intercourse. She8 T (CA561/2014) v R [2016] NZCA 235.only mentioned one occasion specifically, which occurred at one of two addresses inPalmerston North.[19] The Court was satisfied that, with one possible exception(the Palmerston North offending), the allegations were of the generalised type thatmight be expected to be covered by a representative charge.9 This Court stated that:[45] Inevitably the sexual abuse complaints could not be broken up intospecific events at specific times and places because they occurred in arelatively regular and repetitive manner over a long time. Representativecharges are now recognised as lawful in New Zealand. The enactment of theCriminal Procedure Act 2011 specifically recognises their validity in ss 17 and20.[46] Mr Turkington's submission was that, if the Crown could not anchorthe charge with some specificity as to time, place and circumstance where anact occurred then the trial was unfair. That was tantamount to a submissionthat representative charges should not be permitted.[51] It is acceptable practice for representative charges to be used wherethere is a pattern of offending and criminal acts and for an understandable andacceptable reason the complainant is unable to distinguish between them interms of their dates and details.[20] The Court noted that representative charges will be appropriate where "acontinuing course of conduct is alleged, but the prosecution evidence does not enableparticulars to be given of discrete instances of offending".10 In T v R, the complainantwas unable to recount any particular dates or locations in respect of the sex charges.She could not distinguish between the various sexual acts by providing dates, placesor other details. In those circumstances, the Court held it would have been artificialfor charges to have been laid to reflect, for instance, each family home, because theprosecution had no evidence distinguishing events relating to each particular home.11The Court did note, however, that although there was little geographic or temporaldetail anchoring the complaints, T's wife was very specific about the particular natureof T's methods of abusing her.12 For example, there was a level of detail about the9 At [45].10 At [53].11 At [55].12 At [58].violence he employed against her. It was noted that this could provide a basis for ameaningful cross-examination and that T could respond by giving evidence if he choseto do so.13 The Court concluded that:[60] Although the representative charges used in this case were broad, thistype of charge is well-established practice in New Zealand and now expresslyapproved in statute. It enables charges to be laid when there has been acontinuing pattern of behaviour over a prolonged period of time. In thosecircumstances nothing makes the use of representative charges inherentlyunfair when accompanied with the appropriate directions, as they were in thiscase. The alternative would be that an artificial focus on a particular day orplace would have to be chosen for the charge, or charges would not be broughtat all.[21] In this case, in order to prove the charge of sexual violation by unlawful sexualconnection, the Crown was required to prove beyond reasonable doubt that on at leastone occasion during the relevant period the appellant had placed a finger or fingers inthe complainant's vagina. It was common ground that the issue of consent, orreasonable belief in consent, did not arise, given the complainant's age during theperiod of the alleged offending.[22] The complainant could not provide specific dates, places or other details. Thecomplainant was, however, quite specific about what she said the appellant had done.In particular, she said that he had repeatedly entered her bedroom when she wassleeping, put his hand inside her pyjamas, and digitally penetrated her. He is alsoalleged to have engaged in other behaviour of a sexual nature. She described the bunkbeds, what she wore to bed, and the fact that she shared a bedroom with other children.The evidence was sufficiently detailed and specific as to the alleged offending,including the key allegation of digital penetration, to provide a basis for meaningfulcross-examination. The appellant cannot have been under any misapprehension as tothe case he had to meet. He was able to (and did) respond by giving his own evidencerefuting the allegations and calling a supporting witness. Ultimately, however, the juryrejected his evidence and preferred that of the complainant.[23] The case was a fairly simple one — did the appellant digitally penetrate thecomplainant or not? The jury was adequately instructed on the burden and standard13 At [58].of proof, and the elements of the charge. We reject Ms Hall's submission that theevidence required further specificity to support a finding of guilt. The complainantgave sufficient evidence of the alleged offending that each of the elements of thecharge could be found to be proved beyond reasonable doubt, if the jury assessed herevidence as credible and reliable. Any lack of specificity in the complainant's accountwas a matter the jury could properly take into account when assessing the credibilityand reliability of her evidence. This is not a case, however, where no jury, applyingthe criminal standard of proof, could reasonably have reached a guilty verdict on theevidence before it.14[24] For completeness, we note that Ms Hall also referred to evidence fromthe appellant's daughter disputing the possibility of her father offending againstthe complainant in the manner alleged. Ms Hall submitted that this evidence providedfurther support for the submission that the jury could not reasonably have returned averdict of guilty. As with all witnesses, however, issues of reliability and credibilityare matters for the jury. It was not bound to accept her evidence. It may have foundthat the witness lacked credibility or was unreliable. Alternatively, it may have takenthe view that she simply slept through any offending and was therefore not aware ofit. Further, the appellant's daughter shared a bedroom with the complainant for onlypart of the relevant period.[25] The appellant has not satisfied us that no jury, applying the criminal standardof proof, could reasonably have reached a guilty verdict on the evidence. On thecontrary, there was clear evidence to support the jury's verdict.Was the verdict of guilty on the representative charge inconsistent with the verdict ofnot guilty on the specific charge?[26] The appellant's alternative ground of appeal was that the verdict of guilty onthe representative charge (charge 1) was inconsistent with the verdict of not guilty onthe specific charge (charge 2).14 Owen v R, above n 4, at [14]–[15].[27] The Supreme Court in B (SC12/2013) v R reviewed the legal principlesapplicable to appeals based on the ground of inconsistent verdicts. The majority heldthat a court may intervene with a jury's verdicts in circumstances where it is plain thatthe jury's thinking has gone awry in some fundamental way:15Where they deliver multiple verdicts which are not capable of logicalreconciliation, juries give some insight into their thought processes. Logicallyirreconcilable verdicts may indicate that the jury's thinking has gone awry insome fundamental way: in particular, the jury may have acted on amisunderstanding of the law or reached an illegitimate compromise. In suchcircumstances, a court may feel it necessary to intervene in order to ensurethat justice is done, despite its respect for the jury's function in the criminaljustice process.[28] As the Supreme Court noted, the purpose of an inconsistent verdict argumentis to show that a jury's guilty verdict is unreasonable and should therefore bequashed.16 Essentially the test is whether the inconsistency in the verdictsdemonstrates that no reasonable jury applying its mind properly to the admissibleevidence could have arrived at the different verdicts.17 The appellant bears the onusof satisfying the court that the verdicts are inconsistent.18 As to inconsistency, what isrequired is a demonstration that the jury has believed certain evidence in relation toone charge but rejected that same evidence in relation to another charge.19 This doesnot mean, however, that a jury is disentitled from accepting some evidence from awitness as reliable, but not accepting other elements of that samewitness's testimony.20[29] There will be no inconsistency if the evidence provides a basis for the differentverdicts. If there is a reasonable explanation to be found in the evidence that wouldhave justified differential treatment as between the verdicts by the jury, then there willnot be an inconsistency.2115 B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [67] (footnotes omitted).16 At [66].17 R v Irvine [1976] 1 NZLR 96 (CA) at 99.18 R v Wong [2009] NZCA 440 at [27].19 R v Maddox CA424/00, 1 March 2001 at [22].20 R v Shipton [2007] 2 NZLR 218 (CA) at [77].21 R v Irvine, above n 17, at 99–100; and R v K CA49/96, 13 August 1996 at 2.[30] The Supreme Court in B (SC12/2013) v R referred to R v Dhillon, a decisionof the Criminal Division of the English Court of Appeal.22 The Supreme Courtsummarised a point made by the Court in R v Dhillon as follows:23In sex cases where sexual incidents are alleged to have occurred on separateoccasions, inconsistency will not arise simply because the jury accepted partof a complainant's evidence but was not sure about other parts.[31] In R v Shipton, this Court stated that:24[77] Time after time in appeals to this Court it is argued, as counsel arguedhere, that because the jury must have "disbelieved" a witness to acquit on onecount, it was inconsistent to rely on her to convict on another count. Theargument is utterly fallacious; there may be all sorts of valid reasons why thejury may be convinced by a witness on one count but not on another. To putthis another way, there is no reason why credibility must be static.[32] Similarly, in Mahupuku v R, this Court observed that:25 New Zealand juries are instructed to consider separate charges separately,and they are entitled to reach different verdicts on different charges. TheJudge gave this direction very firmly in his summing up. The Court must takeinto account the possibility that a properly directed jury conscientiouslycarrying out its role may find that evidence from the same witness aboutrelated offences does on some occasions prove a charge beyond reasonabledoubt, and on other occasions does not.[33] Ms Hall submitted that the only specific allegation made by the complainantwas "not true" because the appellant was at work at the time of the alleged offending.That being so, she argued, there is a necessary inconsistency with therepresentative charge. Ms Hall submitted, in essence, that because the complainantwas wrong about "the only occasion she could detail what she said had happened toher," the jury could not find that the appellant had offended against her at all.[34] We reject that submission. There is nothing to suggest that the jury hasbelieved certain evidence in relation to one charge but must have rejected that sameevidence in relation to the other charge. There is a logical explanation for the differentverdicts. It was open to the jury to conclude that the complainant's evidence as to22 B (SC12/2013) v R, above n 15, at [83], citing R v Dhillon [2010] EWCA Crim 1577, [2011]2 Cr App R 10.23 B (SC12/2013) v R, above n 15, at [83].24 R v Shipton, above n 20.25 Mahupuku v R [2015] NZCA 510 at [36].the specific charge was unreliable, because it could not have occurred on the particularday stated in her evidence. Even if the jury thought that the relevant incident mayhave occurred at some other time, the confusion regarding dates could well have givenrise to a reasonable doubt in their mind as to the specific charge.[35] In relation to the representative charge, however, it was open to the jury to findthe complainant's evidence both credible and reliable. The jury was not required toeither accept or reject the entirety of the complainant's evidence. It was open to thejury to accept some parts of the complainant's evidence, but not accept others. Noinconsistency arises. The argument advanced is precisely that which was rejected inboth R v Shipton and R v Dhillon.[36] There is nothing in this ground of appeal. The conviction appeal accordinglyfails.Was the sentence manifestly excessive?[37] An appeal against sentence under s 244 of the Act must be allowed if the Courtis satisfied that for any reason there is an error in the sentence imposed and that adifferent sentence should be imposed.26 In any other case the appeal must bedismissed.27Did the Judge err in setting the starting point for the offence?[38] Judge Adeane, after referring to the "unexceptional" personal circumstances ofthe appellant and the facts of the case, referred to the guideline case of R v AM,28 whichsets bands of offending based on the level of seriousness of the offending.[39] In terms of aggravating features, the Judge found that there was an element ofopportunism in the offending, but the relevant opportunities were taken on manyoccasions over a prolonged period. Whether or not this could properly be describedas premeditation (as the Crown submitted) was not seen as material.29 Further, the26 Criminal Procedure Act, s 250(2).27 Section 250(3).28 R v [A], above n 1, at [4]; citing R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.29 R v [A], above n 1, at [5].complainant was vulnerable due to her extreme youth.30 There was a breach of trust,31given the appellant's role as the complainant's stepfather. There was repeatedoffending and psychological harm "of a real kind and a predictable kind when oneconsiders this kind of offending and the consequences which so often are heardof after it comes to light".32 The Judge set a starting point of seven and ahalf years' imprisonment.33[40] Ms Hall submitted that the Judge erred in treating harm as a distinctaggravating factor, because there was no evidence of psychological harm beyond thatinherent in the offence of sexual violation itself. Overall, she submitted, the startingpoint was too high, and was out of step with relevant sentencing levels for this sort ofoffending. She submitted that a starting point of no more than six years wasappropriate.[41] This Court in R v AM (CA27/2009) noted that harm is inherent in this sort ofoffending, and that the more harmful the offending, the more serious it is.34 The Courtnoted that both physical harm and psychological harm are relevant, as well as theimpact on other family members, children or those providing care and support to thecomplainant.35 Harm has sometimes been recognised as a discrete aggravating factorfor sentencing purposes. Often, however, this has only been where some specific orparticular harm has been caused, over and above that inherent in the offending itself,for example where there is evidence of a complainant having become suicidal ordepressed.36 In other cases, however, the court appears to have treated harm as adiscrete aggravating factor despite there being no evidential basis for concluding thatthe degree of harm suffered was greater than that inherent in the offending itself.37[42] Here, it is somewhat unclear whether the Judge was intending to refer simplyto the harm inherent in the offending itself, or whether he saw psychological harm as30 At [6].31 At [6].32 At [7].33 At [9].34 R v AM (CA27/2009), above n 28, at [44].35 At [44].36 R v [PR] [2016] NZHC 1192 at [30(b)].37 See SS (CA445/2016) v R [2017] NZCA 240.a discrete and additional aggravating factor. For the purposes of this appeal, however,(and in favour of the appellant) we will not consider harm as a discrete aggravatingfactor. Rather, we will consider the appropriate starting point solely by reference tothe other aggravating features present.[43] The Judge placed the offending in band two of R v AM, adopting a startingpoint of seven and a half years' imprisonment. The starting point for offending inband two is between four and ten years' imprisonment.[44] Band two is for moderately serious cases, engaging two or three aggravatingfactors.38 Indeed, in C v R,39 (in circumstances that were more serious than the presentcase) this Court observed that a "defendant sexually violating a young child repeatedlyover a period of years should expect to be dealt with in band three".40[45] Band two was clearly appropriate in this case. The key issue is precisely wherein band two the starting point falls. The complainant was very vulnerable due to herage (only four at the outset of the offending). She had no way to escape the offending,which occurred in her own home, the very place where she should have been entitledto feel safe and protected. The perpetrator was her stepfather. A very significantbreach of trust was involved. The offending was also prolonged, occurring over alengthy period of time. Given its repetitive nature, there must also have been at leastsome degree of premeditation. This was not "one off" opportunistic offending.[46] We are satisfied that, taking these various matters into account, a starting pointof seven and a half years' imprisonment (just above the mid-point of band two) waswithin the available range.Was insufficient credit given for mitigating factors?[47] The Judge did not give credit for any mitigating factors. The end sentence wastherefore seven and a half years' imprisonment.38 R v AM (CA27/2009), above n 28, at [14] and [117].39 C v R [2017] NZCA 58.40 At [14].[48] Ms Hall submitted that the Judge erred by not allowing a discrete discount forthe appellant's previous good character. The appellant has no previous convictions forviolence or sexual offending. Rather, his previous convictions are for dishonesty ordriving-related offending. They are historical in nature, dating back over 20 years.Character references describe him as a highly trustworthy person and being of goodmoral character.[49] In Britow v R, the sentencing Judge had expressly considered whether to givecredit for Mr Britow's previous good character, but considered it was counterbalancedby the duration of the offending.41 On appeal, this Court said that:[10] The Judge's approach — whereby a defendant's previous goodcharacter is essentially offset, either wholly or in part, against the duration ofthe relevant offending — has been approved by this Court on a number ofoccasions. An underlying rationale is simply that it is much more difficult toput offending behaviour that continues over a long period of time down to amomentary (and out of character) lapse in judgment by an otherwiseupstanding member of the community. Prolonged offending necessarily callsgood character into question.[50] In Britow v R, a discount for good character was rejected on the basis that therewas only evidence of an absence of previous convictions (rather than a positivecontribution to society), the frequency and duration of the offending, andthe defendant's continued protestations of innocence.42 The Court noted that giventhat a good character discount is justified (in part) on the basis of rehabilitativeprospects, a proper basis for a discount will be absent when the defendant has yet totake responsibility for his offending.43[51] In Hamilton v R, this Court expressly rejected the submission that thesentencing Judge had erred by having regard to the duration of the offending in fixingthe starting point, and then referring to it again as eroding what would otherwise havebeen a greater discount for good character.4441 Britow v R [2017] NZCA 229.42 At [12].43 At [12].44 Hamilton v R [2015] NZCA 28 at [28].[52] Here, a number of character references have been provided from people whospeak highly of the appellant. He has no relevant previous convictions. Theoffending, however, was prolonged. The complainant's evidence was that it occurredregularly over a period of six years. In his pre-sentence report, the appellant continuesto maintain his innocence, claiming it "did not happen". In our view, the Judge didnot err in refusing to grant a good character discount in such circumstances.[53] We mention one final matter. The Judge gave the appellant a first strikewarning under s 86B of the Sentencing Act 2002. As counsel for the respondentpointed out, this was in error, as the relevant offending had commenced prior to thecoming into force of the Sentencing and Parole Reform Act 2010. Section 12(1) ofthat Act provides that ss 86A–86I of the Sentencing Act do not apply to "any offencecommitted, whether in whole or in part, before the commencement of this Act".Section 180(1) of the Act provides that a sentence that could not by law be imposedmay be corrected on application by either of the parties. Section 180(4) provides that"sentence" in the section includes a record of first warning within the meaning ofs 86A of the Sentencing Act. The jurisdiction to make the correction lies withthe sentencing court under s 180(2).Result[54] The application for an extension of time to file the notice of appeal is granted.[55] The appeal against conviction is dismissed.[56] The appeal against sentence is dismissed.[57] In order to protect the identity of the complainant, we make an orderprohibiting publication of the name, address, occupation or identifying particulars ofthe appellant pursuant to s 200 of the Criminal Procedure Act 2011.Solicitors:Crown Law Office, Wellington for Respondent