ROLLESTON & ROCHE v R [2018] NZCA 611

ROLLESTON & ROCHE v R [2018] NZCA 611 [19 December 2018]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGEOF 18 YEARS WHO APPEARED AS A WITNESS OR NAMED WITNESSUNDER 18 YEARS OF AGE PROHIBITED BY S 204 OF THE CRIMINALPROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA485/2017[2018] NZCA 611BETWEEN BROOKE CHRISTIE ROLLESTONAppellantAND THE QUEENRespondentCA486/2017BETWEEN BRANDON JAMES ROCHEAppellantAND THE QUEENRespondentHearing: 14 November 2018Court: Miller, Dobson and Mander JJCounsel: E Huda for AppellantsS K Barr and K L Kensington for RespondentJudgment: 19 December 2018 at 11.00 amJUDGMENT OF THE COURTA Mr Rolleston's appeal against conviction is dismissed.B Mr Rolleston's appeal against sentence is allowed. The sentence of 11 yearsand two months' imprisonment is quashed and substituted with a sentence ofnine years and 11 months' imprisonment.C Mr Roche's appeal against conviction is dismissed.D Mr Roche's appeal against sentence is allowed. The sentence of 10 years andnine months' imprisonment is quashed and substituted with a sentence ofnine years and seven months' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] The appellants, Brooke Rolleston and Brandon Roche, were convicted at trialof the rape and sexual violation by unlawful sexual connection of a 15-year-old girl.The trial Judge, Judge Garland, sentenced Mr Rolleston to 11 years and two months'imprisonment and Mr Roche to 10 years and nine months' imprisonment.1They appeal their convictions on the ground they did not receive a fair trial because ofapparent juror bias. They also allege their sentences were manifestly excessive.Background[2] The complainant became very drunk at an unsupervised party she held at herhouse. While heavily intoxicated, the complainant was observed dancing with andkissing the appellants. The complainant's boyfriend was concerned about hercondition. He was not eased when Mr Rolleston asked him if he would like to "puther on a spit roast" for $20; a suggestion that one would have sexual intercourse withthe complainant while she performed oral sex on the other male. The boyfrienddeclined, pointing out the age of the complainant.[3] When the boyfriend's ride arrived to take him home, he attempted to encouragethe complainant to leave with him. She would not go, and both Messrs Rolleston andRoche aggressively encouraged the boyfriend to leave. Before he did so, he asked a1 R v Rolleston [2017] NZDC 17046 [sentencing notes].female friend to put the complainant to bed. After her boyfriend had left,the complainant went to her bedroom and got into bed, where two of her friends werealready asleep.[4] Later, Messrs Rolleston and Roche went into the bedroom. They took hold ofthe sleeping complainant, lifted her out of bed and carried her out of the room.She was observed as having to be supported in order to walk because she was sointoxicated.[5] The two men took the complainant to an empty room. There, they removedthe complainant's pants and underwear and placed her in a kneeling position.While one had sexual intercourse with the complainant from behind, the other placedhis penis in her mouth. Both men continued to perform these sexual acts on thecomplainant, each swapping position with the other, for some 15 to 20 minutes.[6] After the appellants left the room and joined associates in the kitchen,the complainant stumbled back into the hallway, naked from the waist down.Once back in her bedroom, she was observed in a clearly distressed state, crying andvomiting. In the morning, the complainant had no recollection of the sexual activity.She was unwell, had pain in her vagina and anal area, and a very sore throat.[7] When interviewed by the police, both men admitted having simultaneouslyengaged in sexual acts with the complainant but maintained it was consensual.Appeal against conviction[8] Messrs Rolleston and Roche argue that they did not receive a fair trial becauseof the appearance of juror bias. In particular they contend a miscarriage of justiceoccurred because of apparent bias on the part of the foreperson of the jury (S) who hadgone to school with Mr Rolleston's younger brother.22 Criminal Procedure Act 2011, s 232(4)(b).Declined application to order juror interviews[9] As a preliminary step to their appeal, the appellants applied for orders directingan independent practitioner to interview the jurors from their trial. That applicationwas declined.3 Affidavit evidence was filed from Mr Rolleston, his brother Dante, anda teacher who had contact with the brother. That evidence, which is relied upon insupport of the present appeal, is conveniently summarised in this Court's earlierjudgment as follows:[20] Mr Brooke Rolleston, discussed the process of jury selection.He acknowledged his then lawyer took him through a list of names of potentialjurors which he briefly perused. He said he did not recognise anybody fromthe list, nor did he recognise anybody actually selected as a juror.He explained he was scared and did not pay sufficient attention to the jurors,relying on his lawyer. At some stage during the Crown case, Mr BrookeRolleston realised he knew S. He said he was a year behind him at highschool. Mr Brooke Rolleston did not think to bring this to the attention of hislawyer or anyone else.[21] Mr Dante Rolleston says he was in the same year at high school as Sbetween the years of 2011 and 2014. He exhibited a copy of photographstaken from the school's yearbook in confirmation. Mr Dante Rolleston sayshe was a bully at school and abused other students verbally and physically.He says:"I had many aggressive exchanges with [S]. That is because he wasweird in that he would stare at me intensely for minutes at a time.His staring led me to ask him why he was staring and whether he had aproblem with me. When he did not respond, I verbally abused him infront of other students both, male and female. This was a regularoccurrence."[22] Mr Dante Rolleston explains he attended the trial from either thesecond or third day, sitting in the public gallery. S caught his eye because hewas staring at him intensely for minutes at a time. That made him think heknew S but he was not sure. After the trial had concluded, he went to his highschool and looked at the 2012 yearbook which confirmed his suspicion.[23] The final affidavit is from a teacher at the high school. He knowsthe Rolleston family and confirms that Mr Dante Rolleston and Mr BrookRolleston attended the school in 2011. He had several interactions withMr Dante Rolleston, saying:"These interactions involved my disciplining and supporting himbecause of his bullying attitude toward other students at the school.Dante, as is common with bullies, had a habit of verbally and/orphysically confronting students who could not or would not retaliate."3 Rolleston v R [2018] NZCA 356, [2018] NZAR 1560.[10] In declining the application to interview the jurors, this Court noted that S wasnot a person who would necessarily be disqualified from sitting as a juror. While hecould have been excused from jury service if the trial Judge had been satisfied he waspersonally concerned with the facts of the case or closely connected with one of theparties or witnesses, it was not clear the juror would have been discharged even hadthe juror recognised Mr Rolleston or his brother.4[11] In a passage on which the appellants place some reliance, this Court observedthat at its highest:5... the application turns on the possibility that S recognised Mr DanteRolleston, remembered being verbally bullied by him at school at least threeyears earlier, harboured a grudge as a result and visited the sins of Mr DanteRolleston on both Mr Brooke Rolleston and Mr Roche. Further, that S toldthe rest of the jury about being bullied and that influenced their attitudetowards both appellants and therefore their deliberations.(Emphasis added.)[12] The juror was not "closely connected" with Mr Rolleston. They were not inthe same class at school and there was no suggestion of any issue between the jurorand Mr Rolleston, who was in the year above him. Mr Rolleston had not recognisedS, neither when empanelled nor when selected as the foreperson. Despitethe trial Judge having instructed the jury panel that any selected juror should informhim if they knew one of the defendants, the juror had not raised any concern duringthe trial and there was no indication that he recognised Mr Rolleston, either by nameor by sight. The alternative was that the juror deliberately disregarded the Judge'sinstructions.6[13] The link between Mr Rolleston and the juror via the brother, Dante, wasdescribed as even more tenuous. It relied upon the proposition that in a "packed"public gallery the juror had picked Dante out, remembered having been bullied by himat school, and made the connection between Dante and the defendant, Mr Rolleston.74 At [27].5 At [29].6 At [30].7 At [31].[14] This Court concluded that the allegation of bias, "even at its highest", wouldnot meet the test for a miscarriage of justice on the basis of an unfair trial.8There would need to be some evidence that the jury improperly judged Mr Rollestonbecause of what his brother had done when he was a schoolboy. That very tenuouslinkage did not provide a sufficient evidential basis for alleging the juror was biasedagainst either or both appellants.[15] Because of that finding, the application to interview S and the other 11 jurorswas declined. That ruling has not been appealed. It follows that there remains noevidential basis for the allegation that S was biased against Mr Rolleston or, byassociation, his fellow defendant, Mr Roche.Allegation of apparent bias[16] Notwithstanding the earlier findings of this Court, Messrs Rolleston and Rocheseek to argue that they did not receive a fair trial because of the appearance of jurorbias, calling on the maxim that "justice should not only be done, but should manifestlyand undoubtedly be seen to be done".9[17] The test for apparent bias is well-established. It turns on whether a fair-mindedlay observer might reasonably apprehend that the decision-maker might not bring animpartial mind to the resolution of the question required to be decided.10[18] The fair-minded lay observer "is presumed to be intelligent and to view mattersobjectively".11 The person "is neither unduly sensitive or suspicious nor complacent"about what may influence the decision-maker's decision.12 The fair-minded observeris to be viewed as reasonably informed about the workings of the judicial system, thenature of the issues in the case, and about the facts pertaining to the situation which issaid to give rise to an appearance or apprehension of bias.13 In order to succeed on8 At [33].9 R v Burney [1989] 1 NZLR 732 (CA) at 734.10 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010]1 NZLR 35 at [3].11 At [5].12 At [5].13 At [5], [37]–[38] and [97].this ground it is necessary to show there is a real possibility of the jury or juror beingbiased.14[19] Mr Huda on behalf of the appellants emphasised the passage from this Court'searlier judgment, set out above at [11]. The allegation of bias was summarised "[a]tits highest" by reference to the possibility of S recognising Mr Rolleston's brother andvisiting upon the appellants the grudge it is speculated he might harbour againstthe brother. The difficulty for Mr Huda's argument is that the contended for possibilityis by itself incapable of providing a sufficient basis upon which to allege S was biased.Nor could those circumstances give rise to an appearance of bias on the part of S inthe mind of a fair-minded and fully informed observer. It was for that reason that itwas not considered worthy of further investigation.[20] In the absence of any foundation for the allegation, the "fair-minded andinformed member of the public" could not reasonably apprehend or suspect bias.There is no basis to conclude that S recognised Dante in the public gallery,remembered being bullied by that person, made the link, and notwithstandingthe Judge's instructions continued in his role as a juror in order to visit the sins ofDante upon Mr Rolleston and his co-defendant, Mr Roche.[21] Unfounded speculation of this type could not lead the reasonably informed andfair-minded observer to apprehend or suspect that S might not have discharged hisduty as a juror in an impartial manner. In the absence of that being a real possibility,the test for apparent bias must fail.Appeal against sentence[22] The sentencing Judge identified a number of aggravating features which, takencollectively, he considered caused the offending to fall into the lower end of the thirdband of rape offending identified in R v AM (CA27/2009).15 Such offending attracts arange of imprisonment of 12 to 18 years:1614 At [4], [37] and [94].15 Sentencing notes, above n 1, citing R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR750.16 R v AM (CA27/2009), above n 15.[105] This band will encompass offending accompanied by aggravatingfeatures at a, relatively speaking, serious level. Rape band three is appropriatefor offending which involves two or more of the factors increasing culpabilityto a high degree, such as a particularly vulnerable victim and seriousadditional violence, or more than three of those factors to a moderate degree.Particularly cruel, callous or violent single episodes of offending involvingrape will fall into this band...[23] The aggravating features are readily identifiable and were assessed by thesentencing Judge as follows:(a) The moderate level of premeditation involved in the offending, withMr Rolleston offering the complainant's boyfriend to "spit roast"the complainant earlier in the night, and both men aggressively gettingthe boyfriend to leave in order for them to pursue the complainant.17(b) The vulnerability of the complainant, who was a grossly intoxicated15-year-old, was assessed to be moderate to high. Both men were wellaware of her condition.18(c) The moderate to high degree of harm done to the complainant, whocontinues to be affected by the offending. In addition tothe psychological harm, the complainant contracted chlamydia in bothher mouth and anus as a result of the violations.19(d) There was an element of breach of trust in the offending, in that bothMessrs Rolleston and Roche were guests in the complainant's houseand knew her parents were absent.20(e) The degrading nature of the offending, which involved multipleoffenders sexually violating the complainant at the same time.2117 Sentencing notes, above n 1, at [30].18 At [31]–[32].19 At [33].20 At [34].21 At [35].(f) The scale of the offending was assessed as moderate with both menperforming acts of rape and penile penetration of the complainant'smouth.22[24] The Judge was satisfied that more than three aggravating features were presentto a moderate degree and took a 12-year starting point.23Starting point[25] Mr Huda submitted, by reference to two other sentencing decisions, that thestarting point was excessive.24 He also challenged the trial Judge's finding ofpremeditation. Mr Huda argued that premeditation had to be judged from when theoffenders had decided, regardless of her consent, to have sex with the victim.He submitted that because of their own levels of intoxication the appellants wouldonly have appreciated the victim was not in a position to give informed consent whencarrying her from the room.[26] We reject the submission that the Judge was not entitled to find a moderatelevel of premeditation. The offending was highly predatory in nature. The intoxicatedcomplainant was the subject of the appellants' focus at a much earlier stage in thenight. Her intoxication would have been plain to both men at the time Mr Rollestonapproached the boyfriend to "put her on the spit", and when they both aggressivelysaw him off the property at the time he was seeking to take steps to protect the highlyintoxicated girl. Both men physically removed her from her own bed when she wassleeping and took her to an empty room specifically for the purpose of sexuallyviolating her.[27] Insofar as Mr Huda is able to point to some cases where relatively lowerstarting points were adopted, it is trite to observe that each case will turn on itsindividual circumstances. The categorisation of the offending as band three was not22 At [36].23 At [39].24 Skipper v R [2013] NZCA 104, where a starting point of 12 years' imprisonment was adoptedby the trial Judge for the rape of an intoxicated 21-year-old girl by multiple offenders who hadpicked her up on the pretext of providing her with a lift; and R v Mould [2016] NZHC 154, whereGendall J adopted a starting point of 10 years' imprisonment in sentencing two offenders whoeach raped an intoxicated 16-year-old girl in a secluded area after attending a bonfire together.of itself decisive. The second band provided by R v AM (CA27/2009), which isappropriate for cases which involve the presence of two or three factors of a moderatedegree, still justifies starting points up to a maximum of 13 years' imprisonment.25Because of the number and degree of the aggravating features present in this case,we consider the 12-year starting point for this serious offending to be within range.Discount for youth[28] An offender's age has been held relevant to an offender's sentencing becausethere are age-related neurological differences between young people and adults.These include that young people may be more impulsive than adults and moresusceptible to negative influences and peer pressure. Long sentences can have acrushing effect on young people, who are recognised as having a greater capacity forrehabilitation.26 There is a very real benefit to the community from achieving such anoutcome in a person so young.[29] Messrs Rolleston and Roche were aged 19 and 18 years respectively at the timeof the offending. Both men were aged 20 years at the time of sentencing. From the12-year starting point, a discount of 15 months (approximately 10 per cent) wasafforded to Mr Roche for his youth and lack of previous convictions.27 Mr Rolleston,who had some previous convictions for unrelated offending, received a 10-month(approximately seven percent) reduction in acknowledgment of his age.28[30] Mr Huda argued that the age of the appellants should have been recognised bya greater discount. He emphasised the recognised developmental differences whichdistinguish young people from mature adults, and stressed the long-term consequencesfor these young offenders, including their registration on the Child Sex OffendersRegister and the potential crushing effect of being subject to such a long sentence ofimprisonment.25 R v AM (CA27/2009), above n 15, at [98].26 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77]; R v Taulapapa [2018] NZCA414 at [30]–[32]; and R v Puna [2018] NZHC 79 at [42] and [49]–[50].27 Sentencing notes, above n 1, at [44].28 At [45]. The sentencing Judge described this as a five percent discount.[31] The approach to the mitigating factor of youth was summarised by this Courtin Pouwhare v R:29[83] In the end, a judge sentencing a young person underthe Sentencing Act must always weigh the young person's age and the reasonswhy he or she offended, against the seriousness of his or her offending andprospects of rehabilitation. Sometimes the young person's age will be amitigating factor of high, perhaps decisive, significance not to becircumscribed by any fixed outer percentage. Equally, there can be no warrantfor saying that youth, of itself, must always prevail as the paramount value onsentence, or that youth alone can justify radically reducing the sentence whichwould otherwise be proper.Neither Mr Rolleston nor Mr Roche were young persons, as that term is defined in theOranga Tamariki Act 1989, at the time of this offending.30 However, these sameconsiderations apply to offenders of their relative youth.[32] In support of what the Crown acknowledged were modest discounts, Mr Barremphasised that the offending was not, as is often the case with youth offending,impulsive, but predatory and persistent in its nature. Messrs Rolleston and Rochecontinue to deny their guilt and their level of insight into the effect of their offendingon the victim appears limited.[33] The Crown's review of youth discounts provided to offenders aged between 17and 20 years for offending of this type showed an approximate range of betweeneight per cent to 18 per cent. However, it is difficult in individual cases to extract thediscrete deduction for youth when combined with other personal mitigating factorssuch as mental health difficulties, intellectual functioning, and willingness to engagein rehabilitative treatment.3129 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868.30 For the purpose of the Youth Justice provisions of the Oranga Tamariki Act 1989, a young personis defined as a person over the age of 14 years but under the age of 17 years: s 2, definition of"young person", (b).31 B (CA231/2017) v R [2018] NZCA 137; Hart v R [2017] NZCA 521; W (CA378/2016) v R [2017]NZCA 235; Edri v R [2013] NZCA 264; Ross v R [2013] NZCA 263; Tahiri v R [2013] NZCA73; Ringrose v R [2011] NZCA 634; Day v R [2010] NZCA 172; T (CA440/2018) v R [2018]NZCA 416; Pomare v R [2015] NZCA 191; O'Neill v R [2014] NZCA 466; Smith v R [2015]NZCA 217; Hart v R [2017] NZCA 521; Ross v R [2013] NZCA 263; Ashcroft v R [2014] NZCA551; Solicitor-General v Harvey [2016] NZHC 979; R v John [2018] NZHC 89; and R v Mould,above n 24.[34] Our own research indicates that very significant deductions are often extendedto very young offenders or to youthful offenders who present with a combination ofpersonal mitigating factors in addition to their age. A sample of cases illustrate theapproach that has been taken:(a) In Clarke v R the appellant was sentenced on two charges of sexualviolation that occurred some 25 years prior.32 He received a combineddiscount of 35 per cent for his age at the time, being 18 to 19 years old,his lack of subsequent offending and the particular hardships that hewould be caused because of the disruption to his family life and workin Australia.33(b) In Edri v R, a 17-year-old committed rape and an indecent assault.34This Court upheld a 33 per cent discount for his youth and the fact hehad a foetal alcohol spectrum disorder. The Court noted that of this15–20 per cent was to be attributed to the defendant's mental disorder,thus leaving 13–18 per cent for youth.35(c) In Bryant v R, the defendant pleaded guilty to one charge of rape.36He was 17 years old at the time and had mild cognitive disorders thatwould make prison difficult for him. This Court upheld the combineddiscount of 25 per cent for age and cognitive difficulties, but noted thatit could have been higher.37(d) H (CA376/2017) v R involved serious historic sexual offending by thedefendant against his sisters.38 He was aged 16–20 years during theperiod of offending. The trial Judge extended a discount of 20 per centfor the defendant's youth at the time and in recognition of his current32 Clarke v R [2016] NZCA 91.33 At [45].34 Edri v R, above n 29.35 At [18] and [24].36 Bryant v R [2014] NZCA 591.37 At [14].38 H (CA376/2017) v R [2018] NZCA 376.advanced age, 78, and ill health. This Court upheld that approach butsuggested that a greater youth discount could have been awarded.39(e) A discount of 14 per cent was given for youth and a willingness toundertake rehabilitation in W v R to a 19-year-old defendant who wasconvicted of one charge of sexual violation.40 While this Court upheldthat sentence, it again commented that a larger discount could havebeen given for youth.41(f) In R v MT, the defendant was found guilty of three charges of sexualviolation on his younger sister when he was aged between 18 and21 years.42 There was evidence that the defendant wasdevelopmentally younger than his actual age at the time of theoffending. The High Court provided a discount of 40 per cent for thedefendant's youth and his stunted intellectual development, whichmight make prison more challenging, and his good rehabilitativeprospects.43[35] The Pouwhare approach applies to sentencing for offending of this type,meaning that youth can be a highly significant mitigating factor and there is no fixedouter percentage. Teenagers aged between 14–16 years who have committed serioussexual offences have sometimes been extended discounts of between 30 and50 per cent.44 In practice, there appears to be significant variation in the approachtaken to this aspect of sentencing. This variability may recognise that, as the Courtsaid in Pouwhare, youth alone cannot always radically reduce the otherwiseappropriate sentence.45[36] In the present case, while we accept the Crown's submission that this offendingwas particularly bad, we consider that was reflected in the sentence starting point and39 At [48].40 W (CA378/2016) v R, above n 29.41 At [46].42 R v MT [2016] NZHC 2374.43 At [24]–[25].44 Martin v R [2015] NZCA 533; Lennon v R [2012] NZCA 551; Johnson v R [2014] NZCA 527;and P (CA262/2013) v R [2013] NZCA 543.45 Pouwhare v R, above n 29, at [96]; and R v Mako [2000] 2 NZLR 170 (CA) at [65]–[66].that the offenders' age should have attracted a greater reduction. The sentencing Judgeplaced considerable weight on the failure of either young man to take responsibilityfor their offending. We accept that feature, together with their regrettable attitude andlack of understanding of the impact of their offending on the victim, is indicative of alack of contrition or remorse. However, it is equally indicative of their immaturity.[37] Despite their continued denials, both Messrs Rolleston and Roche are assessedas presenting a low risk of reoffending. Mr Roche expressed some empathy towardshis victim for the trauma she experienced and indicated a willingness to participate inrestorative justice, although such a process seems unrealistic. He was not assessed ashaving any problematic pattern of alcohol or drug use and was noted to be a reliableworker.[38] Mr Rolleston was employed as an apprentice plumber. He was not found tohave a pattern of alcohol or substance use and, from his family, school andemployment background, he, like Mr Roche, appears to have otherwise been leadinga relatively constructive life at the time of his offending, notwithstanding some minorprior offending. Both young men were able to rely on letters and references providedto the sentencing court that attested to the offending being out of character.[39] We accept that because of the serious nature of the offending there must be anemphasis both on denunciation and deterrence. However, Mr Rolleston and Mr Rocheare young men who are not without prospects and are clearly capable of beingcontributing members of the community. Their past denials of guilt and lack of insightdo not preclude their potential for rehabilitation.[40] We are mindful that the Judge who presided over the 10-day trial was wellplaced to judge the maturity of the offenders and that a measure of deference isrequired to be afforded to the trial Judge in making that assessment. We canunderstand his concern at the young men's apparent lack of understanding of theseriousness of the offending and the impact on their victim.[41] We also acknowledge that no minimum term of imprisonment was imposed.The sentencing Judge expressly chose not to do so because of the relative youth of thetwo appellants and the need to provide for their successful rehabilitation andreintegration into society. Preservation of their eligibility for parole at the earlieststatutory opportunity was a significant and appropriate concession. Such leniency haspreviously been afforded by sentencing courts on the basis of age and is an approachwhich this Court has endorsed.46[42] However, we consider the reduction for the appellants' youth was too modestand that it has resulted in a manifestly excessive sentence. We would allow a discountof approximately 17 per cent because of the relatively young age of the appellants atthe time of the offending and the need to calibrate the sentence in recognition of theirprospects for rehabilitation and the limited risk of them reoffending in this serious wayagain. The Judge gave Mr Roche an additional discount to reflect that he had no priorconvictions.47 It was not suggested that discount should be altered.Result[43] Mr Rolleston's appeal against conviction is dismissed.[44] Mr Rolleston's appeal against sentence is allowed. The sentence of 11 yearsand two months' imprisonment is quashed and substituted with a sentence of nineyears and 11 months' imprisonment.[45] Mr Roche's appeal against conviction is dismissed.[46] Mr Roche's appeal against sentence is allowed. The sentence of 10 years andnine months' imprisonment is quashed and substituted with a sentence of nine yearsand seven months' imprisonment.Solicitors:Patient & Williams, Christchurch for AppellantsCrown Law Office, Wellington for Respondent46 R v Harding [2016] NZHC 2069 at [78]; Papa v R [2014] NZHC 2832 at [27]; Huata v R [2013]NZCA 470 at [37]; and Edwardson v R [2017] NZCA 618 at [140].47 Sentencing notes, above n 1, at [44].