B (CA182/2018) v R [2019] NZCA 18

B (CA182/2018) v R [2019] NZCA 18 [8 March 2019]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 BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA182/2018[2019] NZCA 18BETWEEN B (CA182/2018)AppellantAND THE QUEENRespondentHearing: 5 November 2018Court: Kós P, Lang and Moore JJCounsel: B A Crowley and C O Thorburn for AppellantJ C Pike QC and K Peirse-O'Byrne for RespondentJudgment: 8 March 2019 at 11.00 amReissued: 15 March 2019Effective dateof Judgment: 8 March 2019JUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is allowed.C The sentence imposed is quashed and substituted by a sentence of fouryears and six months' imprisonment with no minimum period ofimprisonment.D Order prohibiting publication of name, address, occupation or identifyingparticulars of appellant pursuant to s 200 Criminal Procedure 2011.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Introduction[1] B was found guilty by a jury in the District Court at Whangārei of one chargeof sexual violation by unlawful sexual connection1 and one charge of indecent assault.2Both acts are said to have occurred in 2005.[2] On 16 March 2018 Judge D G Harvey sentenced B to five years' imprisonment.He imposed a minimum period of imprisonment (MPI) of two and a half years.3[3] B now appeals his convictions and sentence. On the conviction appeal headvances three grounds which he says led to a miscarriage of justice:(a) The Judge erred in allowing the admission of counterintuitive evidence.(b) The Judge's interruption of defence counsel's cross-examination wasunwarranted and unfair.(c) The summing up was unfair; particularly the Judge's summary of therespective cases.[4] B appeals his sentence on two grounds. Each is said to have resulted in amanifestly excessive sentence:(a) the failure to give a discount for B's previous good character andabsence of relevant criminal history; and1 Crimes Act 1961, ss 128(1)(b) and 128B. The maximum penalty is 20 years' imprisonment.2 Section 134(2)(c) (since repealed). The maximum penalty is seven years' imprisonment.3 R v [B] [2018] NZDC 5093.(b) the imposition of an MPI.Background[5] B was the complainant's stepfather. He married the complainant's mother in2004. When their marriage ended B moved out of the matrimonial home. However,the complainant maintained contact with him. She continued to visit him at his homeand referred to him as "Dad".Crown case[6] The Crown's case was that when the complainant was aged 12 B offendedagainst her during one of these visits.[7] The Crown alleged this offending occurred during a weekend in 2004 or 2005when the complainant was staying with B. It was claimed he initiated a game of"Simon Says". This segued into B exposing himself and requiring the complainant todo likewise. B then moved the complainant into a bedroom. He told her to lie next tohim. He grabbed her hand and directed her to stroke his penis while he digitallypenetrated her; first with one finger and then with two. After some minutesthe complainant extricated herself using the subterfuge of wanting to see what was ontelevision. Despite B repeatedly asking her to return to the bedroom she refused. Laterin the day B dropped the complainant home.[8] After a period variously described in the evidence as days or weeks,the complainant's mother asked her daughter if she wished to go to her dad's place.The complainant said she did not. The reason for her reluctance was revealed afterfurther questioning. The complainant told her mother that B had touched her anddescribed what had happened.[9] Her mother took her to the police station. This was in late December 2004 orearly January 2005. A complaint was made. However, an evidential interview (EVI)was not arranged until May 2005. By that time the complainant said she no longerwished to go ahead with the interview. No evidential video was conducted. Indeed,another decade passed before the complainant renewed her complaint when anevidential pre-recorded statement was made in January 2016. This led to the presentcharges being laid.Defence case[10] The defence was that the events described by the complainant never occurred;that the complainant was lying. It was submitted she had a motive to lie.[11] Mr Crowley, for B, submitted that the first the defendant knew of thecomplaints was when the police approached him after the complainant's 2016 EVI.His defence was that the complainant was motivated to falsely accuse B because shedid not like him. The 2005 complaint was designed to place a wedge betweenthe complainant's mother and B. This strategy succeeded and B moved out of thedistrict and out of the complainant's life. However, the unwelcome spectre of hisreturn emerged in late 2015 when the complainant's mother told her daughter that shehad seen B at a local church meeting after which the two had met alone. Thisdisclosure led the complainant to become upset. She told her mother she was goingto take B to court.[12] Thus the defence case was that as with the first complaint, the renewedcomplaint was contrived and tactical. It was a false accusation cynically designed tofrustrate any reconciliation between the complainant's mother and B.Appeal against conviction[13] It is against that background that we now turn to consider each of the threegrounds advanced on this conviction appeal.Ground one — should counterintuitive evidence have been admitted?[14] The four-day trial commenced on 22 January 2018. A week before,Mr Crowley objected to counterintuitive evidence the Crown proposed to call from aclinical psychologist, Dr Ahmad. In his pre-trial ruling the Judge expressed a "veryfirm view" that the Crown was entitled to call Dr Ahmad's evidence on the issue ofdelay.4 He said this was irrespective of whether the issue of delay was traversed incross-examination. He was satisfied Dr Ahmad's evidence would provide substantialhelp to the jury in understanding why the reporting did not occur immediately.He permitted the Crown to make reference to the counterintuitive evidence in itsopening address, but only as it related to delay. He directed that no further referencewas to be made to the evidence until after the complainant and her mother hadcompleted their evidence.5[15] At trial the complainant and her mother gave contrary accounts as to whenthe complainant first disclosed the offending. The complainant said she told hermother several days after. In cross-examination she said it "felt" like a few days andaccepted that she had given her mother some detail of what had occurred. In contrast,the complainant's mother said that after the last visit to B's home the complainant was"a little distant". Some weeks later she asked the complainant if she wanted to visit Bagain. The complainant said no. On inquiry she added "I just don't want to".According to the complainant's mother another week or so passed beforethe complainant explained her reluctance.[16] At trial Dr Ahmad's evidence was unremarkable. Consistent with theprinciples set out by the Supreme Court in DH (SC9/2014) v R Dr Ahmad explainedthe limitations of her evidence; that her role was to correct misconceptions membersof the jury may have.6 She said there was no typical reporting pattern. She said therewas a wrongly held belief that if a child had been sexually abused they wouldimmediately report that abuse to someone they trusted. She said that children oftendelay reporting or make no disclosure at all.[17] Mr Crowley did not cross-examine Dr Ahmad but in his address to the jurysubmitted it was in the best position to decide the utility of Dr Ahmad's evidence,adding that any delay in reporting was minimal.4 R v [B] [2018] NZDC 425 at [8].5 At [9].6 DH (SC9/2014) v R [2015] NZSC 35; [2015] 1 NZLR 625 at [2].[18] The Judge addressed Dr Ahmad's evidence in his summing-up. He explainedthat the purpose of the evidence was to inform the jury on the range of behavioursexhibited by child sexual complainants and to counter any misconceptions as to howcomplainants might respond to abuse. He emphasised that the evidence was notspecific to the case. He pointed out that Dr Ahmad had not interviewed any ofthe parties. He made particular mention of the fact that Dr Ahmad's evidence saidnothing about the credibility of the complainant.Analysis[19] Mr Crowley submitted that Dr Ahmad's counterintuitive evidence should nothave been admitted because there was no consistency between the complainant andher mother's accounts as to when the alleged abuse was first disclosed. Mr Crowleysubmitted that the Judge compounded this difficulty when, in the context of discussingDr Ahmad's evidence, he suggested to the jury that the delay was likely to have beensome weeks.[20] In our view the Judge was correct to admit Dr Ahmad's evidence albeit on thelimited basis he did. Whether any delay in reporting was to be measured in days orweeks is not material. It was common ground that the complainant did not make acomplaint immediately. Dr Ahmad's evidence was admissible to correctmisconceptions the jury may have had about delays in reporting. Furthermore, therewas a second delay of some 10 years before the complainant was prepared to engagein a formal complaint process including an EVI. Dr Ahmad's evidence would haveprovided the jury with substantial help in balancing any commonly held assumptionsregarding both aspects of delay.[21] A second complaint was that in the course of his summing-up the Judgedescribed the complainant's disclosure as incremental. In this respect Mr Crowley'scriticism was twofold; the disclosure was not incremental and Dr Ahmad never saidincremental disclosure was a common behavioural pattern.[22] While it is correct that Dr Ahmad made no explicit reference to incrementaldisclosure, the Judge's comment is to be viewed against the central theme ofDr Ahmad's evidence; that there is no typical reporting pattern. Furthermore, on theevidence given by the complainant's mother, the disclosure could be viewed as anevolving process.[23] We are not satisfied the Judge's account was in error or, if it was, that it gaverise to a miscarriage of justice. Any minor prejudicial effect would have beenneutralised by the Judge's comments which immediately followed, as he told the jurythat the purpose of the evidence was to inform them of the range of behaviour amongstchild sexual complainants. Viewed in the overall context of the trial this would havebeen clear to the jury. Dr Ahmad referred to it in her evidence and the Crownaddressed the point in closing. The purpose and relevance of Dr Ahmad's evidencewould not have been lost to the jury.[24] Mr Crowley's third point was the Judge should not have commented thatthe complaint was likely to have been made some weeks after the offending. Hesubmitted that given the conflict in evidence this was a question of fact for the jury.[25] However, any such error does not give rise to a miscarriage of justice.If anything, the comment tended to favour the defence by indicating the complainant'sevidence was unreliable on that point.[26] For these reasons we are satisfied that no miscarriage of justice arises fromeither the admission of Dr Ahmad's evidence or the comments made by the Judge insumming up.Ground two — the Judge's interruptions[27] Under this second ground of appeal Mr Crowley submitted that the Judgefrequently interrupted him throughout his cross-examination of the complainant.These interruptions, he said, had the effect of disrupting the continuity of a delicatelybalanced and tactically non-confrontational cross-examination. The interruptionsprevented the defence from effectively developing its theory of the case; that theallegations were false and were motivated by a desire to frustrate reconciliation.Mr Crowley also complained that the interruptions undermined legitimate challengesto the complainant's credibility. In summary, Mr Crowley said that the Judge wasunduly protective of the complainant and exhibited a lack of neutrality therebyundermining the defence.Legal principles[28] The power of a judge to disallow questions which he or she considers improper,unfair, misleading, needlessly repetitive, or expressed in language which is toocomplicated for the witness to understand, is contained in s 85(1) of the Evidence Act2006 (the Act). Section 85(2) provides a non-exhaustive list of matters a judge maytake into account in exercising powers under s 85(1). These include the age or maturityof the witness, any physical, intellectual or psychological impairments, the linguisticor cultural background of the witness and the nature of the proceedings.[29] However, s 85 does not stand alone. As this Court discussed inM (CA508/2014) v R, there are other provisions in the Act which add to a judge's broadpowers to make rulings on admissibility and to regulate the nature and scope ofexamination, cross-examination and re-examination.7[30] In particular, s 100 permits judges to ask questions of witnesses that theyconsider justice requires. In exercising that discretion, the judge should take intoaccount:8(a) the defendants' right to a fair trial;(b) the separate roles of the judge and jury;(c) the need to let counsel pursue their examination and cross-examinationof witnesses in accordance with their professional responsibilities andtheir obligations under the Act; and7 M (CA508/2014) v R [2015] NZCA 183 at [30], citing the Evidence Act 2006, ss 85 (unacceptablequestions), 89 (leading questions in examination-in-chief and re-examination), 92 (cross-examination duties), 93 (limits on cross-examination), 94 (cross-examination by party of ownwitness), 95 (restrictions on cross-examination by parties in person), 97 (re-examination), 98(further evidence after closure of case), 99 (witness recalled by judge) and 100 (questioning ofwitness by judge).8 At [33].(d) the possibility that judicial questioning could cut across a defencewhich a defendant wishes to rely on but which may not be apparent tothe judge.[31] Subject to the requirement that the judge's powers are exercised in the interestsof justice for fair trial purposes,9 they are broad:10[29] The judicial power of control over a trial extends, by way ofillustration, to clarifying evidence so the judge or jury understands it, toinsisting that evidence should focus on relevant matters and avoid repetition,to calling witnesses to order, to stopping counsel once an issue has beensufficiently explored, to assisting witnesses by ensuring, for example, thatthey understand counsel's questions, and to protecting vulnerable witnesses orthose who face harassment in cross-examination.[32] We repeat previous warnings of this Court that judges must take care not toadopt an overly managerial role in the trial and/or adopt a course prejudicial tothe accused.11 Excessive questioning and interventions may indicate an unfavourableview of one side. It may give rise to a reasonable perception of bias or, in combinationwith the judge's approach during summing up, a miscarriage of justice. This occurredin R v Fotu.12[33] Ultimately, there is just one yardstick. That is whether the judge's conductreasonably gives rise to an impression of a lack of neutrality:13[33] Intervention by a Judge in performing the legitimate and importantrole of assisting a jury in a criminal trial can have the incidental effect ofadvancing the case of the Crown or defence to some extent. That consequenceof clarification of evidence is often inevitable and is not in itself objectionable.What the Judge is, however, bound to do is to refrain from stepping outsidethe limits of the judicial role, especially by assuming that of the Crown ordefence in the trial. As well, while acting within the legitimate scope of thejudicial role, the Judge must not act in a manner which reasonably gives riseto an impression there is a lack of neutrality in the Judge's conduct of the trial.This reflects the underlying principle that a presiding Judge should not showbias 9 At [30].10 Tahere v R [2013] NZCA 86 (footnotes omitted).11 R v Fotu [1995] 3 NZLR 129 (CA) at 135; and R v Parata (2001) 19 CRNZ 352 (CA) at [11]–[12] and the cases cited therein.12 R v Fotu, above n 11.13 R v H (CA421/01) (2002) 19 CRNZ 518.[34] These principles also closely resemble those which govern a judge's duty insumming up; matters which are relevant to the third ground of appeal.14Analysis[35] In assessing Mr Crowley's complaint it is necessary to review the trialtranscript and examine the various judicial interventions.[36] The complainant commenced her evidence shortly after 3:00 pm on the firstday of the trial. She appeared via CCTV. Her evidence-in-chief comprised the playingof the pre-recorded EVI following which the Crown asked supplementary questions.Mr Crowley commenced his cross-examination at about 3:45 pm. By our calculation,between that time and when the Court adjourned for the day at about 4:30 pm therewere 10 judicial interruptions. Of these, seven appear to have been directed towardsMr Crowley while the balance related to clarifying ambiguities or areas of potentialconfusion.[37] At 10:00 am the following day the complainant's cross-examination continuedfor a further 40 minutes. During that period there were four interruptions. Two werein fact initiated by the Crown, apparently seeking either greater specificity orclarification on the questions asked.[38] As for the judicial interruptions on the first day we are satisfied that noneindividually or collectively gives rise to a reasonable impression of lack of neutrality.An example can be found in the second interruption. This occurred about 10 minutesinto Mr Crowley's cross-examination. He asked the complainant if she couldremember a time when her older brother damaged B's car. She said "no". The Judgeintervened to point out that a question prefaced with the words "Do you remember "is likely to produce an ambiguous response. Mr Crowley reframed his question.He told the complainant B would give evidence that such an incident had happenedand asked her whether she could remember it. In our view there can be no criticismof this intervention. The initial question and answer were capable of differentinterpretations; first, whether the complainant remembered such event or secondly,14 Discussed at [54].whether such an event had, in fact, occurred. The intervention was to avoid thepotential for that ambiguity.[39] We have examined the other instances of judicial intervention complained ofduring this stage of the cross-examination. No good purpose is served in setting themout in detail. Suffice it to record that in our view none of the interventions cross theline. None revealed a lack of neutrality. Each time the Judge interrupted it was forthe purpose of either ensuring the complainant understood the question asked or toavoid ambiguity. We do not accept that the jury would have been left with thereasonable impression the Judge was partisan or lacking in neutrality.[40] In our view the overarching impression this exchange would have left withthe jury was not a partisan Judge evincing a lack of neutrality but rather one who,consistent with his duty to ensure fairness to all, was seeking to bring clarity to theevidential exchanges.[41] We now turn to the resumption of the cross-examination on the second day.Towards the end of his cross-examination, Mr Crowley asked the complainant aboutthe circumstances in which she came to make her complaint in 2015. The focus wason her mother's encounter with B:Q. Did she seem happy to have seen [B] again?A. I don't know.Q. Well how did she seem when she told you about their meeting?A. She was worried because she was worried to tell me.Q. So she was worried about telling you. Is that right?A. Yes.Q. What do you mean by that? What was worrying her as far as you wereaware about telling you?A. She was worried about how I'd feel about her meeting up with him.Q. So would it be fair to say she was happy about meeting with [B] butshe was worried about how you might feel about it?[42] The Judge addressed Mr Crowley in the following way:THE COURT:Well, isn't that a question that you are best to direct to her mother? You'reasking this witness to give evidence about how her mother felt.MR CROWLEY:Yes, I'm asking [the complainant] to give evidence about her impressions ofhow her mother felt.THE COURT:Well, look, I don't see how that's going to assist, Mr Crowley, move on.[43] Mr Crowley submitted to us that he was developing the foundation from whichto put to the complainant that her dislike of B and her fear that he and her mother mightreunite was the real motivation behind her renewing the false complaint in early 2016.The Judge's evident impatience and direction to Mr Crowley that he "move on"dissuaded him from continuing what he described as an important line of questioninggoing to the heart of the defence case. Mr Crowley submitted this was compoundedby the Judge's comments in the summing-up. When describing the defence case,the Judge put it this way:Now, by implication and in fact directly, what has been put to you bythe defence is that [the complainant's] motivation for going to the Police andmaking the complaint was to stop her mother and the defendant reconciling.Well, it is certainly not for the defence to prove motive but you might think itwould have been fairer if that suggestion had been put to [the complainant],and it was not.[44] While we accept that the intervention was appropriate given the way thequestion was framed, it seems plain to us that when the Judge intervened he wasunaware of how Mr Crowley intended to develop his questioning. For sound tacticalreasons Mr Crowley did not wish to alienate the jury by adopting an overly aggressivestance or mount a direct challenge to the complainant. Had he told the Judge, inchambers if necessary, that the purpose of his questioning went to the issue of a motiveto lie, it seems to us inevitable the Judge would have permitted him to continue.Certainly, no objection could have been taken to Mr Crowley putting the directproposition to the complainant; that her allegations against B were motivated by herdesire to frustrate any reconciliation. Had that course been adopted the Judge wouldnot have commented to the jury as he did.[45] It is perhaps unfortunate that as a result of a combination of factors the defencecase was not directly put to the complainant for comment. The failure to do so byMr Crowley was neither an oversight nor was it inadvertent. Mr Crowley reasonablybelieved the Judge had directed him not to pursue that line of questioning.[46] Irrespective of the reasons, our task is to determine whether that failure and theconsequential comments of the Judge in summing-up caused justice to miscarry.We are satisfied it did not.[47] We have carefully reviewed Mr Crowley's closing address. In a powerful andarticulate fashion he put the defence theory to the jury. In particular the complainant'smotive to lie was dealt with comprehensively. The jury would have been left in nodoubt as to the nature of the defence.[48] Additionally, although we have acknowledged the Judge mistakenly toldMr Crowley to "move on", we do not think much was to be gained in cross-examiningthe complainant about her alleged motive to lie. She was 25 at the time of the trial.Given the way she responded to other parts of the cross-examination, we are confidentshe would not have agreed with any suggestion she fabricated her allegations in 2005and 2012 for the purpose of removing B from her mother's life. A denial would nothave assisted the defence case. Indeed, it is possible a strongly negative responsemight, in fact, have harmed the defence.[49] Finally, in other respects the defence case was fairly and fully summarised inthe Judge's summing-up. He made it clear the defence position was the complainant"clearly did not want her mother reconciling with the defendant" and that:there was obviously something bubbling in the background it was onlyafter [the complainant] was told that he had returned to the area that shesuddenly said, 'right, I am going to take him to court'.[50] The Judge repeated this central theme later in his summing-up when heexplicitly observed the defence was that the complainant had a motive to lie to protecther mother. In that context he also pointed out that the defence bore no onus to provemotive.[51] For these reasons we are satisfied the defence's case was squarely put tothe jury.[52] The question remains, however, whether the Judge's comment about fairnesscaused justice to miscarry. As we have indicated, we are also satisfied it did not.The Judge passed no comment on how the jury should deal with the defence theory asto motive to lie. He simply commented on fairness to the complainant, rather than theweight to be given to the proposition. Had the Judge gone further and directed the juryon the limited weight they might attach to the defence theory a miscarriage might haveoccurred. But he did not. Instead he gave a relatively mild caution to the jury. We donot think this caution would have dissuaded the jury from accepting the defencetheory, if it considered it was reasonably possible.[53] Viewed in the context of the summing up as a whole, we have little difficultyconcluding the Judge's comment did not give rise to a miscarriage of justice.It follows we are not satisfied that the Judge's interventions, viewed holistically,created a reasonable impression of lack of neutrality. The sheer number ofinterruptions, particularly given the relatively short cross-examination, has made theJudge susceptible to the criticism he intervened too readily. We consider, however,the jury would have been left with the overall impression that the Judge was focusedon achieving clarity and fairness for all parties, including counsel, the complainantand the jury. For these reasons we are satisfied that the interventions, whether assessedindividually or collectively, do not give rise to a miscarriage of justice.Ground three — was the summing-up unfair?[54] Mr Crowley's criticisms of the summing-up were threefold:(a) There was an undue emphasis on the strength of aspects of the Crowncase.(b) The Judge was critical of aspects of the defence case.(c) The defence theory was undermined.Legal principles[55] The leading statement on how a judge should approach his or her summing-upto the jury is found in R v Keremete:15A judge's summing up must identify the fundamental facts in issue, bebalanced in its treatment of opposing contentions with respect to those facts,and leave the jury in no doubt that the facts are for them and not for the judge.Rival contentions with respect to the factual issues will normally besummarised (R v Miratana, 4 December 2002 CA 102/02) but there is a widediscretion as to the level of detail to which the judge descends in carrying outthat task. Treatment of matters affecting the cogency of evidence is notrequired as a matter of law: R v Foss (1996) 14 CRNZ 1 (CA) at p 4.The judge need not, and should not, strive for an artificial balance between therival cases if the evidence clearly favours one side or the other: R v Hall [1987]1 NZLR 616 (CA). A judge is entitled to express his or her own views onissues of fact, so long as it is made clear that the jury remains the sole arbiterof fact (R v Hall, supra, at p 625). Any comment on the facts should be madein suitable terms without use of emotive terms or phrases which could lead toa perception of injustice. But provided the issues are fairly presented, thecomment may be in strong terms: R v Daly (1989) 4 CRNZ 628 (CA).Inevitably these are ultimately matters of degree and judgment.[56] A judge is not obliged to summarise every point made by counsel in closing.The task of a summing-up is to identify the facts in issue and give a summary of therival cases in respect of those facts.[57] With those principles in mind, we turn to address each of Mr Crowley'scriticisms.Did the Judge unduly emphasise the strength of the Crown case?[58] Mr Crowley pointed to two aspects of the summing-up which he says undulyemphasised the strength of the Crown's case.[59] The first was when the Judge summarised the Crown's description of the–complainant's evidence, observing that the Crown submitted the complainant had beenconsistent in her descriptions throughout. The Judge concluded with the words:Certainly there was a delay but you have had an explanation for that.15 R v Keremete CA247/03, 23 October 2003 at [18]–[19].[60] It is plain that this comment, read in its context, was simply a continuation ofthe Judge's summary of the Crown case. That would have been readily apparent tothe jury. No unfairness arises.[61] The other criticism is similarly explained. The Judge repeated the Crown'ssubmission that the complainant's account was both internally and externallyconsistent. It was against that background that the Judge said:So, here you have a situation where you have got [the complainant] tellingyou about the incident, the sexual incident, but when you look at the otherevidence around, that too is consistent.[62] Again, when viewed in context, the Judge's comment was a general summaryof the effect of the Crown's submissions rather than some form of judicial imprimaturin support of the prosecution case.Was the Judge critical of aspects of the defence case?[63] Mr Crowley said the Judge failed to properly put the defence case and evenwhen he did he undermined its effect by referring to evidence tending to contradict itor dismissing aspects which the defence had emphasised. For example, Mr Crowleypointed to the following passage from the summing-up:You might also, of course, bear in mind that at the time that the first complaintwas made to the police, the defendant and [the complainant's] mother hadseparated and that the complaint that was ultimately made 10 years later wasconsistent with what [the complainant] had already said.[64] Mr Crowley's submission was that these comments ignored the essence ofthe defence case, namely the motive the complainant had to falsely accuse B.Mr Crowley says that the Judge's comments rendered the defence case "weightless"and were "fatal" to it.[65] We cannot agree. The passage complained of was included in the middle ofthe Judge's reasonably extensive and accurate summary of the defence case. As aconsequence, it did not assume the degree of prominence it might have had it beenincluded elsewhere in the summing-up. In our view, taken in the context of the wholeof the summing-up, any potential for unfairness was minimal.[66] A similar observation may be made in relation to the other parts of thesumming-up which Mr Crowley pointed us to.Did the Judge undermine the defence's theory of the case?[67] The final point raised by Mr Crowley was the way in which the Judge treatedthe submission in respect of the complainant's motivation to make a false complaint.The relevant extract has already been referred to and discussed above at [43]. Whileit is unfortunate that as a result of a misunderstanding between Mr Crowley and theJudge the defence case was not put directly to the complainant, we are not satisfiedfor the reasons already discussed that justice miscarried.[68] For these reasons we are satisfied that the appeal against conviction should bedismissed.Sentence appeal[69] As previously noted Ms Thorburn advances the sentence appeal on twogrounds.Ground one — should a discount for previous good character have been given?[70] Having fixed a starting point of five years' imprisonment (on the cusp of bandsone and two as set out in R v AM (CA27/2009)),16 the Judge turned to consider theimposition of an MPI without considering whether a discount for B's lack of relevantconvictions and previous good character was warranted. Earlier, he had noted:17[The pre-sentence report] does tell me you have lived a useful life and youhave done some very good work, not only with [X] but also with [Y] and[Z].[71] Ms Thorburn submitted the Judge erred in failing to take these factors intoaccount.18 She referred to this Court's comments in R v Findlay:1916 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.17 R v [B], above n 3, at [12].18 Sentencing Act 2002, s 9(2)(g).19 R v Findlay [2007] NZCA 553.[91] This Court has, however, recognised the place of good character anda life of community involvement as a mitigating feature. In R v Howe [1982]1 NZLR 618 at 629 this Court said: "Persons who have shown themselvesgenerally law-abiding citizens of good character are usually entitled to invoketheir creditable record in mitigation when they come before the Courts, evenfor quite serious offences". The point finds legislative endorsement in s9(2)(g) of the Sentencing Act. Two things underpin this feature of mitigation:recognising a fall from grace as punishment in itself, and recognising thegreater potential for rehabilitation where community involvement and goodcharacter bears witness to a reduced probability of reoffending.[72] Prior decisions of this Court have noted matters which might assist in fixingan appropriate discount for good character, if one was warranted. One is the length ofthe period during which the defendant has exhibited good character. A second iswhether the evidence of good character simply consists of an absence of convictionsor also includes positive contributions to society.20[73] The Crown accepted that the Judge could have given a modest discount for theabsence of recent convictions. B is 55. He has a fraud conviction relating back to1980 when he was 18. In 2017 he was convicted of driving with excess breath alcohol.In other words, for 37 years he did not offend (except for the index offending).[74] B has worked for various community care organisations, including in themental health field and assisting at a residential complex for teenage sex offenders.[75] Mr Pike submitted that a discount is not warranted for B's work in thecommunity. He said that having spent his career in the care industry, he should haveknown better than to offend as he did.[76] There is some force to that submission. However, in our view it should notdisentitle B from a discount for his positive contributions. This is not a case, forexample, where he used his work as a means to offend, or where his offending occurredover such an extended period that his contributions must be seen in that light. We notethat other defendants have been given substantial discounts where their occupationshave involved service to the community. For example, police officers have received20 See for example R v Hockley [2009] NZCA 74 at [30].credits at sentence despite the fact that dealing with the consequences of crime is aninextricable part of their work.21[77] It follows that we are of the view the Judge erred in not providing a discountfor B's history. A discrete discount of 10 per cent was warranted for this factor.Ground two — should an MPI have been imposed?[78] An MPI of two and a half years, or 50 per cent of the sentence, was imposed.22[79] The Judge set out the following reasons for imposing an MPI:23Section 86 Sentencing Act sets out when a Court may impose a minimumperiod of imprisonment. It may be done for one or all of the followingpurposes; first, because it is necessary to hold you accountable for the harmthat is done, secondly, to denounce the conduct, thirdly, to deter you and othersfrom offending in this way and fourthly, protecting the community from you.I put that consideration to one side as I have already said. However, sadly inthis country this type of offending is at epidemic proportions. This Court hasto do everything that it can to send a message not just to you but to anyoneelse who is minded to offend in this way, that to do so and to find yourselfbefore the Court will have serious consequences. There is a need for deterrentsentences to be imposed.[80] In determining whether to impose an MPI, the court must consider whetherserving one third of the nominal sentence is insufficient for any of the four purposesthe Judge listed.24 It is plain that in this case the Judge considered the need to deterthis type of offending justified an MPI.[81] Ms Thorburn submitted the Judge failed to satisfy himself the standardtimeframe for consideration of parole, under s 84 of the Parole Act 2002, wasinadequate before imposing an MPI. She added that B has no history of relevantoffending, and has not offended in this way since 2005, when the offending occurred.She submitted that the offending was a single incident of opportunistic conduct.She cited a number of authorities where this Court determined these factors meant anMPI was not justified.2521 See for example R v McSweeney [2007] NZCA 147 at [5].22 R v [B], above n 3, at [21].23 At [20].24 Sentencing Act 2002, s 86(2). See also R v Taueki [2005] 3 NZLR 372 (CA) at [55].25 Taylor v R [2012] NZCA 348; Mukoko v R [2012] NZCA 390; R v Wirangi [2007] NZCA 25; and[82] Mr Pike submitted that the conclusion the Judge reached was available to him.The complainant of B's offending was a vulnerable 12-year-old. B was a father figurewho took advantage of the complainant's naivety to sexually offend against her in away that has had a severely negative impact on her life. Despite those factors he hasnot accepted responsibility or displayed remorse.[83] Each of the factors identified by Mr Pike was undoubtedly present in this case,and justified the five-year starting point the Judge fixed. However, in our view, theydid not call for the imposition of an MPI longer than the otherwise applicable periodon the basis of deterrence. The salient question was whether the need to deter B andothers was such that an MPI beyond the standard period was required. For the reasonsset out by Ms Thorburn, there is nothing to suggest B poses a high risk of reoffending.Relatedly, his personal circumstances are not such that the imposition of the standardperiod of imprisonment will fail to have a strongly deterrent effect.[84] We agree with Mr Crowley that this Court's decision in R v Wirangi is apposite.The appellant in that case did not have any prior convictions for sexual or violentoffences. He did not pose a high risk of reoffending, although he continued to protesthis innocence. Moreover, his offending was against a complainant who trusted himclosely, and who was profoundly impacted. This Court found:26[18] Addressing the statutory purposes under s 86(2), we consider the eightyear term and the usual minimum period of imprisonment under s 84(1) ParoleAct 2002 was sufficient for those purposes. It is not to be assumed thatthe appellant will be released immediately upon the expiry of the minimumperiod of one-third of the full term of the sentence. Indeed, our understandingis that this is unlikely for offending of this type. The statutory purposes ofholding the offender accountable for the harm, denouncing his conduct anddeterring him or others from committing similar offences will be metsufficiently by the usual minimum period. There is nothing in the appellant'sprevious record to suggest he presents a high risk of reoffending,notwithstanding his continued protestations of innocence and his lack ofremorse. And, for the same reason, we do not consider any longer minimumterm than that mandated by the Parole Act is required in order to protect thecommunity.[85] For these reasons we would also conclude the Judge erred in imposing an MPI.Harrison v R [2011] NZCA 642.26 R v Wirangi, above n 25.Result[86] The appeal against conviction is dismissed.[87] The appeal against sentence is allowed.[88] The sentence imposed is quashed and substituted with a sentence of four yearsand six months' imprisonment with no MPI.[89] In order to protect the identity of the complainant, we make an orderprohibiting publication of the name, address, occupation or identifying particulars ofB pursuant to s 200 of the Criminal Procedure Act 2011.Solicitors:Public Defence Service, Wellington for AppellantCrown Law Office, Wellington for Respondent