TAYLOR v R [2023] NZCA 476

TAYLOR v R [2023] NZCA 476 [2 October 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF VICTIM PROHIBITED BY SS 203 AND204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA547/2022[2023] NZCA 476BETWEEN BRETT OWEN TAYLORAppellantAND THE KINGRespondentHearing: 24 August 2023Court: Wylie, Ellis and van Bohemen JJCounsel: S Brickell for AppellantH G Clark for RespondentJudgment: 2 October 2023 at 10 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by van Bohemen J)[1] Mr Brett Taylor was convicted after being found guilty by jury of 18 chargesof sexual offending against his stepdaughter when she was aged between about sevenand 14. The charges comprised nine charges of sexual violation by rape,1 five charges1 Crimes Act 1961, ss 128(1)(a) and 128B; maximum penalty, 20 years' imprisonment.of sexual violation by unlawful sexual connection,2 and four charges of doing anindecent act on a young person.3 Four of the rape charges and two of the unlawfulsexual connection charges were representative charges. Mr Taylor was sentenced byJudge Grau in the District Court at Manukau to 17 years and one month'simprisonment, with a minimum period of imprisonment (MPI) of eight years.4[2] Mr Taylor appeals his conviction and the MPI of eight years imposed byJudge Grau.[3] The grounds of appeal against conviction are that the Judge misdirected thejury on the consent element in the charges for rape and unlawful sexual connectionand that this resulted in a miscarriage of justice.[4] The grounds of appeal against sentence are that the sentence is manifestlyexcessive because the MPI of just under 50 per cent of the total sentence was imposedin circumstances where the criteria in s 86 of the Sentencing Act 2002 had not beensatisfied.The offending[5] We adopt the Judge's summary of the offending when sentencing Mr Taylor:5[7] You began a relationship with A's mother in moving in with herand her two children, A, the victim, as I will call her, and her brother. In you married her mother. Between you lived as a family at an address in ....At that address you began touching her sexually. When she was about six orseven years old you penetrated her genitalia with your fingers. You raped heras well, unsurprisingly causing pain to a small child's body on that firstoccasion.[8] At the second address where the family lived between you raped Aa number of times and committed other sexual offending against her that year.[9] At the last address you lived at with the family, between youregularly persistently sexually abused A in her bedroom, in a spa pool andwhen you would take her out with you in your truck and then in the garage atthe address after you had moved out of the main dwelling, when yourrelationship with her mother broke down. You were raping her with increasing2 Sections 128(1)(b) and 128B; maximum penalty, 20 years' imprisonment.3 Section 134(3); maximum penalty, seven years' imprisonment4 R v Taylor [2022] NZDC 19290 [sentencing notes].5 Sentencing notes, above n 4.frequency towards the end of this time. It was not until you were gone fromthe family home that A was able to tell someone what you had been doing toher; first a family friend and then her mother.[6] It is also relevant to record the next paragraph of the Judge's sentencing notes:[10] You still deny the offending despite being found guilty by a jury. Yousay you intend to continue to fight these charges and that of course is yourright. You told the pre-sentence report writer that the jury had made up theirmind before you could defend yourself. But you did defend yourself,Mr Taylor, with the help of your very experienced and skilled lawyer whothoroughly and robustly challenged all of A's evidence.Appeal against conviction[7] Under s 232(2)(c) of the Criminal Procedure Act 2011, the court must allow anappeal against conviction if a miscarriage of justice has occurred for any reason.Otherwise, the court must dismiss the appeal.6 A miscarriage of justice includes anyerror, irregularity or occurrence in the trial that has created a real risk that the outcomeof the trial was affected or has resulted in an unfair trial.7Submissions on behalf of Mr Taylor[8] Mr Brickell, counsel for Mr Taylor, first submitted that the Judge misdirectedthe jury on consent despite Mr Taylor's defence at trial being that the sexual activitydid not occur. Mr Brickell said that the Judge appropriately directed the jury that thereis no presumption in law that a person is incapable of consenting because of their age.However, he said that direction was significantly diminished by the subsequentdirections that there are some circumstances where allowing sexual activity does notamount to consent, including where the complainant's intellectual and mentaldevelopment is such that she should not consent or refuse to consent or where thecomplainant is mistaken about or incapable of comprehending the nature and qualityof the act of sexual activity. Mr Brickell also said that the Judge's directions were notfirmly founded in the wording of s 128A of the Crimes Act and that, in the QuestionTrail given to the jury, the Judge quoted selectively from s 128A.6 Criminal Procedure Act 2011, s 232(3).7 Section 232(4).[9] Secondly, Mr Brickell says that there was a reasonable basis for believing thatthe victim consented as a result of Mr Taylor's grooming. He said the Judge shouldhave referred this possibility to the jury and should have explained that grooming doesnot vitiate consent.[10] Thirdly, Mr Brickell said that the Judge undermined her correct statement ofthe law with regard to age by saying in her summing up that, if the jury found that thesexual activity had taken place, consideration of the elements of consent andreasonable belief in consent would not take the jury very long.[11] In support of his overall submission that there was a miscarriage of justice,Mr Brickell referred to the Supreme Court's decision in Christian v R,8 and said theCourt could not be assured that the jury carefully considered the elements of consentand reasonable belief when there was a credible narrative available that there was suchconsent. Mr Brickell also referred to decisions of this Court in R v Accused andR v Herbert, where the Court directed that care should be taken in directing juries onthe question of consent, particularly when dealing with sexual violation chargesinvolving females of around 14 years of age,9 because that is a sufficient age forconsent to have been reasonably possible. Mr Brickell also referred to Bian v Police¸where the Court held the trial Judge's directions on consent in relation to sexualviolation of a 14-year-old to be inadequate.10Submissions for the Crown[12] Ms Clark for the Crown summarised the victim's evidence of Mr Taylor'soffending at the three addresses and what the victim had said and not said to othersabout the offending. Ms Clark also summarised the victim's responses tocross-examination conducted on the basis that the offending had never occurred andthat, if it had, the victim would have told her mother. Ms Clark also summarised theevidence of other witnesses, including Mr Taylor, who had denied any of the offendinghad occurred.8 Christian v R [2017] NZSC 145, [2018] 1 NZLR 315.9 R v Accused (CA494/97) (1998) 16 CRNZ 149 (CA) at 157; and R v Herbert CA81/98 12 August1998.10 Bian v Police [2015] NZCA 595, (2015) 27 CRNZ 627 at [47].[13] Ms Clark submitted that the Judge appropriately directed the jury to considerconsent and reasonable belief in consent and did not err in not pointing the jury toconsider a reasonable possibility that the victim consented. Ms Clark disputed thatthere was an evidential foundation relating to grooming similar to that in Christian,which involved quite different facts. Ms Clark said there was minimal if any evidenceto support a potential consent narrative and said that to direct the jury to such evidenceas might have supported such a narrative would have risked drawing attention to theevidence of Mr Taylor's episodes of violence. Ms Clark noted that the Judge haddirected the jury that the evidence of violence could not be used as a basis for inferringthat it was more likely that Mr Taylor had sexually abused the victim.[14] Ms Clark also submitted that there was no error in the Judge's observation thatthe consent elements would not take very long.The Judge's Question Trail[15] Before summing up, the Judge handed out to the jury a 20 page Question Trailwhich set out the questions the jury had to consider with respect to each of the18 charges when deciding their verdicts.Charge 1[16] Under charge 1, which concerned sexual violation by unlawful sexualconnection, the Question Trail read as follows:11QUESTION 1 Are you sure that between at Mr Taylor introducedhis fingers into the genitalia of [A]?The slightest degree of introduction of the fingers into thegenitalia is sufficientIf NO Find Mr Taylor not guiltyIf YES Go to Question 2QUESTION 2 Are you sure that [A] did not consent to that act.11 Note: The explanatory notes included with the questions were set out in red typescript. In thisjudgment, we have italicised the explanatory notes."Consent" means true consent freely given by a person whois in a position to make a rational decision. There is nopresumption of law that a person is incapable of consentingto sexual connection because of age. Lack of protest orphysical resistance does not, of itself, amount to consent.There are some circumstances where allowing sexualactivity does not amount to consent, including:(a) the application of force to the complainant or thethreat or fear of such application of force; or(b) the complainant's intellectual or mental developmentis such that she cannot consent or refuse to consent tothe activity; or(c) the complainant is mistaken about or incapable ofcomprehending the nature and quality of the act ofsexual activity.If NO Find Mr Taylor not guiltyIf YES Go to question 3QUESTION 3 Are you sure that, at the time Mr Taylor introduced hisfingers into [A]'s genitalia he did not believe that she wasconsenting?If NO Go to question 4If YES Find Mr Taylor guiltyQUESTION 4 Are you sure that, at the time Mr Taylor introduced hisfingers into [A]'s genitalia he had no reasonable grounds tobelieve that she was consenting?If NO Find Mr Taylor not guiltyIf YES Find Mr Taylor guiltyThis means are you sure that no reasonable person inMr Taylor's position could have believed that [A] wasconsenting.Charge 2[17] Under charge 2, which concerned sexual violation by rape, the Question Trailread as follows:QUESTION 1 Are you sure that between at Mr Taylor penetrated thegenitalia of [A] with his penis?The slightest degree of introduction of the penis into thegenitalia is sufficient for penetration to have occurred.If NO Find Mr Taylor not guiltyIf YES Go to Question 2QUESTION 2 Are you sure that [A] did not consent to that act?Consent: see definition above for charge 1If NO Find Mr Taylor not guiltyIf YES Go to question 3QUESTION 3 Are you sure that, at the time Mr Taylor penetrated [A]'sgenitalia with his penis, he did not believe that she wasconsenting?If NO Go to question 4If YES Find Mr Taylor guiltyQUESTION 4 Are you sure that, at the time Mr Taylor penetrated [A]'sgenitalia with his penis he had no reasonable grounds tobelieve that she was consenting?If NO Find Mr Taylor not guiltyIf YES Find Mr Taylor guiltyOther sexual violation charges[18] The remaining questions in the Question Trail concerning the other charges ofsexual violation by unlawful sexual connection and sexual violation by rape werestructured in the same manner as the questions for charge 2 but made no explicitreference to the definition of consent in charge 1. That is, the definition of consentgiven in charge 1 was repeated by way of reference in charge 2 but was not otherwiserepeated in relation to the other charges.The Judge's directions to the jury on consent[19] In her summing up, the Judge took the jury through the questions in theQuestion Trail for the first charge. After explaining the Crown and defence cases inrespect of the first question; namely, whether digital penetration occurred, the Judgeaddressed the next question about whether the victim consented to that act. The Judgesaid:[91] Question 2 asks you: "Are you sure that [A] did not consent to thatact?" Underneath this is a definition of consent. Consent means true consentfreely given by a person who is in a position to make a rational decision.There's no presumption of law that a person is incapable of consenting tosexual connection because of age. Lack of protest or physical resistance doesnot of itself amount to consent. There are some circumstances where allowingsexual activity does not amount to consent including the application of forceof the threat or fear of application of force, the complainant's intellectual ormental development is such that she cannot consent or refuse to consent, orthe complainant is mistaken about or incapable of comprehending the natureand quality of the act of sexual activity.[92] You might be surprised that this is a question for you to answer whenthe allegation is about sexual conduct by an adult stepfather to a child. Butconsent is one of the elements of the charge that needs to be proved beyondreasonable doubt. So if you do get to question 2 you must also be sure she didnot consent. And on the Crown case, of course she was not consenting; shewas a little child, seven or eight. And she'd also said in general if she said no,he'd be nasty and leave her out of family things. But the Crown's position isthat question 1 is the key question. If you answer yes to question 1, you'resure this happened, then you'll have no difficulty in being sure she did notconsent. And on the defence case, the defence is not suggesting that consentis an issue where a complainant is a young stepdaughter. But on the defencecase you don't even get to this question because it did not happen, it's a falseallegation, and you would have stopped after question 1. So if the answer'sno, you find Mr Taylor not guilty. If yes, you go on to question 3.[93] Question 3 asks that "Are you sure at the time Mr Taylor introducedhis fingers into [A]'s genitalia, he did not believe that she was consenting?"And on the Crown case; again if you've got to the point where you're sure itdid happen then you'll also be sure he didn't believe she was consentinglooking at the circumstances, the relationship and her age. And, the defencecase, you don't get here because this never happened. So if the answer's no,you go to question 4. If the [answer's] yes, you find Mr Taylor guilty.[94] Question 4 asks: "Are you sure that at the time Mr Taylor introducedhis fingers into [A]'s genitalia, he had no reasonable grounds to believe thatshe was consenting?" This means that are you sure that no reasonable personin Mr Taylor's position could've believed she was consenting. Again, on theCrown case it's a simple yes if you find this act happened, no reasonablestepfather would believe their stepdaughter was consenting to such an act.And the defence case; you would not get to this question at all because thissimply did not happen, it was a false allegation.[95] So that's how the question trail works.[20] The Judge then discussed the questions under charge 2 as follows:[96] And once you've gone through charge 1, you move on to charge 2;this is the allegation of sexual violation by rape, again at the first address in in the farm shed. And the first question is the question which really asksyou whether you're sure it happened: "Are you sure that between those twodates Mr Taylor penetrated the genitalia of [A] with his penis?" The slightestdegree of introduction of the penis into the genitalia is sufficient forpenetration to have occurred. And on the Crown case this is the incident whereMr Taylor's taken her to the farm shed; she said he kissed her, sucked herboobs and put his penis in her vagina. And she also said the first time he wastrying to push it in, she said it wouldn't work and it was really sore. And onthe defence case it didn't happen, you can't rely on her evidence about thisincident. This is another lie dropped into a fact. He would take her out to theshed to look at the baby chickens and she's also unreliable when she's givenvarious different ages at the time she says this happened and despite saying itwas really sore she never said anything to her mother.[97] So if you answer no, you're not sure this happened, you findMr Taylor not guilty. You stop there and you move onto the next charge. Ifthe answer is yes, you go onto the following questions.[98] I think you've probably got the idea about that by now. I'm not goingto keep going through them as I have done for the first one. Your key questionis question 1: "Did it happen?" You do need to work through the otherquestions if you find that it did happen, but they would not take you very long.[21] The Judge took the jury through the remaining questions in the Question Trailconcerning the other charges in shorter fashion and did not again address the issue ofconsent.Analysis on appeal against conviction[22] Because Mr Brickell contended that the Judge's directions did not conformwith the Supreme Court's rulings in Christian v R,12 it is relevant to recall the factsand relevant directions from the Supreme Court in that decision.Christian v R[23] Mr Christian appealed three convictions of sexual violation by rape. The firstcount related to a specific occasion; the second and third charges were representativecharges relating to when the complainant lived on the appellant's property and whenthe appellant lived in a house bus with the complainant on the complainant's mother'sproperty. The appellant ran a church of which the complainant's mother was amember. The offending took place when the complainant was aged 13 or 14. Thedefence case at trial was that none of the sexual encounters happened.[24] The trial Judge initially directed the jury on the elements of consent, but laterdirected that neither consent nor reasonable belief in consent was a live issue and said12 Christian v R, above n 8.that if the jury were satisfied the act occurred, the verdict would have to be guilty.13The Supreme Court ruled that trial Judges should give directions on all elements ofoffences in cases of sexual offending, even if consent or reasonable belief in consentwere not put in issue by the defence.14 The Court explained:[36] The directions do not need to be elaborate but need to ensure that thejury is clear that a guilty verdict can be returned only if the Crown has provedbeyond reasonable doubt that the complainant did not consent and thedefendant did not believe on reasonable grounds that the complainantconsented. For example, it would be sufficient in a case where the defendantdoes not raise consent or reasonable belief in consent as issues for the Judgeto outline those elements of the offence, record that the defendant has notraised an issue with those elements but make it clear that the jury mustnevertheless be satisfied beyond reasonable doubt that the complainant did notconsent and that the defendant did not reasonably believe he or she did. TheJudge's summary of the evidence should draw the jury's attention to anyevidence relevant to those elements. Of course, in outlining the evidence, theJudge must not invite the jury to disbelieve the defendant's defence ofcomplete denial that any sexual encounter occurred.[25] The Supreme Court accepted that the wide difference in age between theappellant and complainant, the complainant's immature knowledge of sexual matters,the complainant's vulnerability, the appellant's status as a church leader and de factoguardian, the evidence of threats against the complainant and the appellant's provisionof money and drugs to the complainant pointed against any reasonable possibility ofthe appellant's reasonable belief in consent.15 However, the Court said that the jury,if properly directed, might have concluded that they could not rule out the reasonablepossibility that the interactions between the complainant and the appellant involvedher consenting as a consequence of the appellant's grooming, in respect of the repeatedsexual activity that formed the basis of the representative charges.16 The Court saidthat, while "not the most likely outcome", this needed to be left to the jury to decide,and that the jury also needed to consider whether the complainant's later retractedstatement to police that "it was consensual" was true.17 On that basis, the Courtallowed the appeal, and ordered a new trial on the two representative charges.1813 At [17].14 At [35].15 At [66]–[67].16 At [67].17 At [67].18 At [68] and [73].Relevance of Christian to present case[26] The above summary demonstrates that there are significant differencesbetween Judge Grau's directions in the present case and the trial Judge's directions inChristian. Judge Grau did not suggest to the jury that consent was not an issue. Tothe contrary, in her Question Trail and in the directions in her summing up, the Judgespecifically directed the jury that consent had to be proven. In her summing up, theJudge said that there is no presumption that a person is incapable of consenting tosexual connection because of age, that this was one of the elements of the charges thatneeded to be proved beyond reasonable doubt and that, if the jury was satisfied thatMr Taylor had committed the acts alleged in Question 1 under charges 1 and 2 (andfor the other charges), they needed to be sure that A did not consent.[27] We are satisfied that, in those directions, and in Questions 2, 3 and 4 in theQuestion Trail under charges 1 and 2, the Judge properly drew the jury's attention tothe fact that, even though Mr Taylor's case was that the alleged acts of sexual violationdid not happen, if the jury was satisfied that the acts did in fact happen, they had to besure that A had not consented to the acts and that Mr Taylor had not reasonablybelieved that she had.[28] In terms of the Supreme Court's directions in Christian, we are satisfied thatthe Judge adequately recorded that Mr Taylor had not raised an issue with consent butmade it clear that the jury must nevertheless be satisfied beyond reasonable doubtthat A did not consent and that Mr Taylor did not reasonably believe she had.Did the Judge's direction draw selectively from s 128A?[29] The criticism that the Judge quoted selectively from s 128A of the Crimes Acthas no factual foundation.[30] Section 128A of the Crimes Act provides:128A Allowing sexual activity does not amount to consent in somecircumstances(1) A person does not consent to sexual activity just because he or shedoes not protest or offer physical resistance to the activity.(2) A person does not consent to sexual activity if he or she allows theactivity because of—(a) force applied to him or her or some other person; or(b) the threat (express or implied) of the application of force tohim or her or some other person; or(c) the fear of the application of force to him or her or some otherperson.(3) A person does not consent to sexual activity if the activity occurswhile he or she is asleep or unconscious.(4) A person does not consent to sexual activity if the activity occurswhile he or she is so affected by alcohol or some other drug that he orshe cannot consent or refuse to consent to the activity.(5) A person does not consent to sexual activity if the activity occurswhile he or she is affected by an intellectual, mental, or physicalcondition or impairment of such a nature and degree that he or shecannot consent or refuse to consent to the activity.(6) One person does not consent to sexual activity with another person ifhe or she allows the sexual activity because he or she is mistakenabout who the other person is.(7) A person does not consent to an act of sexual activity if he or sheallows the act because he or she is mistaken about its nature andquality.(8) This section does not limit the circumstances in which a person doesnot consent to sexual activity.(9) For the purposes of this section,—allows includes acquiesces in, submits to, participates in, andundertakessexual activity, in relation to a person, means—(a) sexual connection with the person; or(b) the doing on the person of an indecent act that, without theperson's consent, would be an indecent assault of the person.[31] Analysis of the Judge's explanatory note under Question 2 of Charge 1 (aboveat [16]) shows that, in that note, the Judge summarised the contents of s 128A(1), (2),(5) and (7). The Judge did not refer to the matters described in s 128A(3), (4) or (6).It would not have been appropriate to have done so. There was no evidence to suggestthat the alleged acts occurred when A was asleep, or that alcohol or drugs wereinvolved or that A was mistaken as to who Mr Taylor was. In other words, far fromquoting selectively from s 128A, the Judge's Question Trail covered all possiblyrelevant elements of the section, albeit that, as s 128A(8) makes clear, there is noconceptual limit to the circumstances in which a person does not consent to sexualactivity.[32] We see no error in the way the Judge summarised the subsections of s 128Athat might have been relevant. We do not accept that, in giving that summary, theJudge diminished the direction that there is no presumption in law that a person isincapable of consenting because of their age or made that direction unclear.[33] We are satisfied, therefore, that the Judge made no error in the content of herdirections on consent under charges 1 and 2. As Mr Brickell accepted, the directionson consent with respect to charges 1 and 2 applied equally to the directions for the restof the charges and did not need to be repeated.Did the Judge fail to draw the jury's attention to evidence relevant to consent,including grooming?[34] Mr Brickell says there was a credible narrative that the acts that took placewhen A was older, when she was aged between 12 and 14, were with A's consent orthat there was a reasonable basis on which Mr Taylor might have believed that A hadconsented. Mr Brickell said it could have been inferred that, by that stage, A had beengroomed by Mr Taylor to accept his advances and that consent must be considered inthose circumstances.[35] Mr Brickell referred to various passages in A's evidence which he saidsupported such a narrative. These included passages where A said that:(a) Mr Taylor did not threaten her as such, but A did not want to tell anyoneabout the offending because she was scared that he would hurt her, herbrother or her mother;(b) she had gone out to see Mr Taylor in the garage after he and her motherhad had an argument to see if he was okay, because she "genuinelycared about him" and, even though what he was doing was wrong, thatis the person A is, and she still cared about Mr Taylor;(c) Mr Taylor had told her it was okay to say no, but that it got to the pointthat she was scared to tell him no because of the way he was treatingher, her mother and her brother;(d) she did what made Mr Taylor happy because she did not know anybetter at the time;(e) she should have told someone about the abuse earlier but did notbecause she wanted a mum and a dad and did not want a broken familyso she "kind [of] just let it be"; and(f) she had lied when Mr Taylor had asked her if she liked what he haddone (the sexual abuse) because she did not want to "feel like shit"because that was how he made her feel when she said no.[36] The difficulty with Mr Brickell's submission is that, even the examples hegives provide little basis for putting to the jury the proposition that A had consented orthat Mr Taylor had reasonable grounds for believing that A had consented. In almostall of the examples to which Mr Brickell referred, A qualified her evidence by referringto her fear that Mr Taylor would hurt her, her mother or her brother or gave otherreasons that made it plain that A was far from being in situations that could beconsidered consensual, or which would provide any reasonable basis for Mr Taylor tobelieve that A had consented, given the disparities in their ages and positions. AsMs Clark observes, any direction to consider this evidence would have risked drawingthe jury's attention to the evidence of Mr Taylor's violence and risked the jury usingthat evidence to support a conclusion that Mr Taylor must have sexually abusedA — which the Judge had warned the jury against.[37] We agree with Ms Clark that A's evidence is not consistent with a narrative ofconsent. There was little basis, therefore, upon which the Judge could have directedthe jury with respect to a narrative of consent other than the fact that the acts hadoccurred — which Mr Taylor disputed. As the Supreme Court said in Christian, theJudge could not invite the jury to disbelieve Mr Taylor's defence of complete denialthat any sexual encounter occurred.19 The case is not comparable with the situationsconsidered in R v Accused or Herbert, in both of which the appellants had alleged thatthe victims had consented.20[38] For these reasons, we are satisfied that there is nothing of substance in thisaspect of Mr Taylor's appeal.Did the Judge diminish the significance of consent by telling the jury that consent andreasonable belief in consent "would not take them very long"?[39] As set out above at [18], the Judge's comment was made in relation tocharges 3 to 18 and was made after she had taken the jury through the questions inrelation to charges 1 and 2. The Judge's words were:[98] Your key question is question 1: "Did it happen?" You do need towork through the other questions if you find that it did happen, but they wouldnot take you very long.[40] We consider the Judge's directions were intended to reassure the jury that thetask of working through the 20 page Question Trail was not as daunting as it mightfirst appear. We do not consider that there is any substance in Mr Brickell's contentionthat, in making that observation, the Judge was diminishing or downplaying thesignificance of consent or reasonable grounds of belief in consent.[41] For all these reasons we are satisfied that the Judge made no error in herdirections to the jury and that there was no miscarriage of justice.Appeal against sentence[42] Under s 250(2) of the Criminal Procedure Act, the Court must allow an appealagainst sentence if satisfied that, for any reason, there was an error in the sentence19 Christian v R, above n 8, at [36].20 R v Accused, above n 9, at 152; and Herbert, above n 9.imposed on conviction or that a different sentence should be imposed. Otherwise, itmust dismiss the appeal.21[43] Mr Taylor's appeal against sentence is limited to the Judge's decision to imposean MPI, having regard to s 86 of the Sentencing Act 2002.[44] Section 86 relevantly provides:86 Imposition of minimum period of imprisonment in relation todeterminate sentence of imprisonment(1) If a court sentences an offender to a determinate sentence ofimprisonment of more than 2 years for a particular offence, it may, atthe same time as it sentences the offender, order that the offender servea minimum period of imprisonment in relation to that particularsentence.(2) The court may impose a minimum period of imprisonment that islonger than the period otherwise applicable under section 84(1) of theParole Act 2002 if it is satisfied that that period is insufficient for allor any of the following purposes:(a) holding the offender accountable for the harm done to thevictim and the community by the offending:(b) denouncing the conduct in which the offender was involved:(c) deterring the offender or other persons from committing thesame or a similar offence:(d) protecting the community from the offender.(4) A minimum period of imprisonment imposed under this section mustnot exceed the lesser of—(a) two-thirds of the full term of the sentence; or(b) 10 years.Submissions on sentence appeal[45] Mr Brickell says it was not necessary for the Judge to impose an MPI becausethe objectives of accountability and deterrence were met with the Judge's high21 Criminal Procedure Act, s 250(3).sentence of 17 years' imprisonment. He says the length of the sentence means thatMr Taylor would not be eligible for parole until after six years, and that the sentenceis enough to protect the community from Mr Taylor, who will not be released until heis no longer an undue risk to the community.[46] Ms Clark submits that neither the sentence nor the MPI of eight years wasmanifestly excessive given the extensive and prolonged nature of Mr Taylor'soffending.The Judge's sentencing decision[47] The Judge said that the matters that made the offending so serious wereas follows:(a) The scale of the offending: eight years of regular sexual abuse fromwhen the victim was very young until she was 14.22(b) Planning and premeditation: Mr Taylor had taken all the opportunitieshe could to get the victim alone so he could engage in sexual activitywith her.23(c) The enormous harm to the victim and her family with devastatingeffects that were likely to be lifelong.24(d) The gross breach of trust by a person who was effectively thevictim's father.25(e) The vulnerability of the victim, as shown by her inability to tell anyonewhat Mr Taylor was doing over such a long time.2622 Sentencing notes, above n 4, at [15].23 At [16].24 At [17].25 At [18].26 At [19].(f) The emotional abuse of the victim, which meant the victim was scaredto say "no" because of the way Mr Taylor treated her, her mother andher brother.27[48] The Judge adopted a starting point of 18 years' imprisonment.28 The Judgemade no uplift for Mr Taylor's previous offending and agreed that no reduction forprevious good character was available.29[49] The Judge did not consider the information in Mr Taylor's psychological reportand cultural report established a level of social, cultural or economic deprivation thathad any connection with the offending. However, the Judge reduced the sentence byfive per cent on the basis of information in the cultural report that Mr Taylor had beensexually abused by an uncle when younger, even though Mr Taylor had denied thatabuse to the psychologist.30 This resulted in an end sentence of 17 years and onemonth's imprisonment.31[50] The Judge then stated:[29] I need to consider under s 86 of the Sentencing Act 2002 whether toimpose a minimum period of imprisonment that would be longer than theusual period before you will be able to apply for release on parole. I can onlydo that if I am satisfied that the period that would otherwise apply, which isaround five and a half years, would be insufficient to hold you accountable,denounce your conduct, deter you and others or protect the community.27 At [20].28 At [21].29 At [22]–[23].30 At [28].31 At [28].[51] The Judge summarised the positions of the Crown and Mr Taylor on whetheran MPI should be imposed and discussed decisions of this Court in R v AM, Zhang vR and F v R as they related to the imposition of MPIs.32 The Judge then stated:[33] In this case I find that the test for a minimum period of imprisonmentis satisfied for the purposes of denunciation, deterrence and accountability andthat the ordinary minimum period of a third of the sentence would beinsufficient for these purposes, given the scale and seriousness of theoffending and where you do not take any responsibility for the offending thatyou have been found guilty of, Mr Taylor. I set a minimum period at eightyears' imprisonment, which is slightly less than 50 per cent.Analysis on appeal against sentence[52] There is little merit in Mr Taylor's appeal against sentence.[53] No objection was made to the starting point or the end sentence, and none couldreasonably have been taken, given the nature, scale and seriousness of the offending.[54] It is plain that the Judge did not approach the question of whether to impose anMPI as a matter of routine or in a mechanistic way. The Judge specifically turned hermind to whether to the standard release period of one third of Mr Taylor's sentence of17 years and one month's imprisonment; that is, five years and eight months, wouldbe sufficient, having regard to the purposes set out in s 86(2) of the Sentencing Act.The Judge concluded that that period would not be sufficient having regard to three ofthose purposes and set an MPI of just under half of Mr Taylor's sentence.[55] Mr Taylor's offending was egregious. He took advantage of a young child andthen young person over a prolonged period and intimidated her with actual violenceand threats of violence against her, her brother and her mother in order carry out actsfor his sexual gratification that no child or young person should have to endure. Wesee no error in the Judge's conclusion that a parole period of five years and eightmonths was not sufficient for holding Mr Taylor accountable for the harm done to thevictim and the community, for denouncing his conduct or for deterring Mr Taylor andothers from committing the same or similar offences.32 At [32], citing R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750; Zhang v R [2019]NZCA 507, [2019] 3 NZLR 648; and F (CA126/2016) v R [2016] NZCA 611.[56] We are satisfied that sentence itself and MPI were justified and were notexcessive.Result[57] The appeal against conviction is dismissed.[58] The appeal against sentence is dismissed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent