BRADLEY v R [2020] NZCA 10

BRADLEY v R [2020] NZCA 10 [7 February 2020]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF WITNESS S PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA141/2018[2020] NZCA 10BETWEEN CHRISTOPHER MARTIN BRADLEYAppellantAND THE QUEENRespondentHearing: 11 November 2019Court: Wild, Whata and Katz JJCounsel: A M Toohey for AppellantP D Marshall and A R McRae for RespondentJudgment: 7 February 2020 at 10.00 amRecalled andReissued:29 October 2020Effective dateof Judgment: 7 February 2020JUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Wild J)Introduction[1] Mr Bradley appeals both against conviction and sentence. He faced sixrepresentative charges of raping his step-daughters, over a period of about two and ahalf years, when the girls were aged between seven and nine. He was tried in theDistrict Court at Timaru over 7 days between 11 and 20 December 2017. The juryfound him guilty on five of the six charges. On 2 March 2018 Judge Maze sentencedMr Bradley to 15 years' imprisonment.1Factual backgroundFamily living and custody arrangements[2] Both Mr Bradley and his wife had children from previous marriages.They formed a relationship in 2010, and married in 2014. From 2011 the couple livedin Mr Bradley's home in a rural town in the South Island. They had the primary careof Mrs Bradley's three children, including the two complainants, to whom we willrefer as A and R. These children stayed with their father every second weekend.Mr Bradley shared, with his former wife, custody of his own four children includinghis daughter S, who was two years older than A and R.The complaints[3] On 29 April 2016 S reported to her mother that A and R had told her Mr Bradleyhad been having sex with them. S's mother alerted the police and Child Youth andFamily Services (CYFS).[4] On 2 May CYFS sent two social workers to interview A and R at their school.Neither girl disclosed any sexual abuse in the course of this interview(s).2 On 9 MayR wrote a letter to her step-sister S, claiming that Mr Bradley had "been having sex1 R v Bradley [2018] NZDC 4082.2 It is unclear to us whether A and R were interviewed separately or together on that occasion.with me and [A]" in their beds after their mother had left for work. She also said thatMr Bradley had made them get into the spa pool naked and had also put his hand downtheir pants. It emerged that S had dictated the content of this letter to R, or at least hadhelped R write the letter. The letter was delivered to the complainants' school, whichreferred it to CYFS.[5] On 10 May a social worker from CYFS interviewed R. Mrs Bradley was atthis interview or arrived during the interview and, when she realised what R wassaying, asked R "why didn't you tell me? When could this have happened?" The toneof those questions was disbelieving.[6] Later that day A and R were taken to Ashburton where they stayed withMr Bradley's parents who took them the following day, 11 May, to Timaru.[7] At Timaru the two girls were interviewed at CYFS' offices. When dealing withthe first ground of appeal, we will need to provide some further detail as tothe sequence of these interviews. Both girls disclosed being raped by Mr Bradley, andthe charges against Mr Bradley followed on 23 May.The opposing cases at trialCrown case[8] The Crown's primary evidence was that of A and R, in their evidentialinterviews (EVIs). Each girl confirmed, at the start of her EVI, and also undercross-examination, that she had told the truth:(a) R said Mr Bradley would come into her bedroom while she was asleep,get into her bed and have sex with her. He would then put the bedsheetsand her pyjamas in the wash, because sperm got on them. She wouldhave a shower because she had sperm all over her as well. R saidMr Bradley also raped her in her mother's bed, and he raped both ofthem in the spa pool. She said the sperm made her vagina sore.She said Mr Bradley sometimes gave her money, and told her not to tellanyone. He had, she said, recently promised not to do it again. R alsosaid that she sometimes woke up and saw Mr Bradley in A's bed.(b) A's account was similar: Mr Bradley would get into her bed inthe morning, after her mother had gone to work, and have sex with her.He would then put her nightie and knickers in the wash and make herhave a shower. A also said that Mr Bradley had sex with her in hisbedroom. She said the sex made her "sore". The last time Mr Bradleydid it he said he was sorry and that she should not tell anyone becausehe did not want to get "told off".[9] These accounts were supported by evidence from Mr Bradley's daughter, S.There were three parts to this:(a) S's evidence of the recent complaints made to her by A and R.(b) Waking up and seeing her father on or beside R's bed, telling R not toworry about "a spot" on her bed and he then taking the sheets off andleaving, coming back with $15 for R. Then R telling S that Mr Bradleyhad "spilt the sperm on the bed" and that the money was "for havingsex with her".(c) Seeing Mr Bradley encouraging A and R to get naked into the spa withhim, where he would get them to sit on his lap "tummy to tummy".S said that she could not see what was happening under the waterbecause of the bubbles in the spa. When she tried to sit next to herfather, he would push her away and make her sit across the pool.[10] The following forensic evidence:(a) Mr Bradley's semen was found on the electric blanket on A's bed, in aposition consistent with Mr Bradley having deposited it in the courseof sexual intercourse with a small child.3 It was about 60 cm downfrom the head of the bed and 50 cm in from the side of the mattress.3(b) Similarly, Mr Bradley's semen was found on R's bed, approximately70 cm from the bedhead and 50 cm in from the side of the mattress.4(c) A was found to have genital warts upon medical examination inMay 2017. Testing confirmed she was infected with the HumanPapilloma Virus (HPV). Dr Wendy Miller gave expert evidence thatgenital warts were very rare in children, and the most likely explanationfor the presence of HPV was that A had had sexual contact with anotherperson. Dr Miller did not exclude the possibility of transmission to Aby other means, nor was she able to narrow down the timeframe withinwhich the infection occurred.Defence case[11] Mr Bradley denied any of the alleged offending.[12] In terms of the complaints, the defence pointed to a recent shift in child supportpayments from Mr Bradley to his former wife, and to S's involvement, as possiblereasons why A and R had fabricated their complaints. The lack of any complaintduring the initial interviews at the school on 2 May 2016 was highlighted, as wasthe fact that S had "dictated" the letter written by R. A further point of emphasis wasthat A made complaints in her EVI only when "prompted" to support her sister R.5[13] Mr Bradley accepted that his semen was on the electric blankets on the twogirls' beds. In evidence he explained that he and his wife had occasionally had sexualintercourse on the girls' electric blankets while the blankets were on the floor.3 DNA testing demonstrated that it was 600,000 million times more likely that the DNA in the semenoriginated from A and R and Mr Bradley, than from A and R and an unknown person chosen atrandom from the New Zealand population.4 The medical examination of A by Dr Wendy Miller on 25 May 2017 records A's height as136.5 cm. The examination of R by Dr Miller on 18 June 2017 records R's height as 138.5 cm.5 We refer to this further in [32]–[35] below.[14] The defence also sought to exploit the uncertainties in, or limitations of,Dr Miller's evidence: that there were other explanations for the genital warts foundon A, and the fact that no timeframe for infection could be given.Approach on appeal[15] Ms Toomey readily accepted that Mr Bradley's appeal against conviction canonly succeed if he established a miscarriage of justice. In terms of s 232(4) ofthe Criminal Procedure Act 2011, that required Mr Bradley to identify one or morethings relating to the trial that had created a real risk that the outcome of the trial wasaffected, or had resulted in an unfair trial.[16] As this Court has explained, the logical approach is first to determine whethersomething(s) has affected the trial and then, if yes, to decide whether there is a realpossibility that it may have affected the outcome or whether the trial was unfair.6[17] The benchmarks when assessing the fairness of a trial are the minimumstandards of criminal procedure and the right to natural justice guaranteed by ss 25and 27 of the New Zealand Bill of Rights Act 1990 (NZBORA) respectively.The credibility of Mr Bradley and of his trial counsel, Mr Ruane[18] Mr Bradley supported his appeal with affidavits he affirmed on 16 August and24 October 2019. In those affidavits he made numerous criticisms of his trial counsel,Mr Ruane. Mr Ruane responded to those criticisms in affidavits he swore on 9 Octoberand 5 November 2019. Both Mr Bradley and Mr Ruane were cross-examined beforeus.[19] There are sharp conflicts between the evidence of Mr Bradley and that ofMr Ruane relating to many of Mr Bradley's grounds of appeal. The success of thosegrounds hinges on our accepting Mr Bradley's evidence, and rejecting that ofMr Ruane. Accordingly, before we deal with the grounds of appeal, we need to dealwith Mr Bradley's credibility and that of Mr Ruane.6 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [24]–[26].[20] We do not find Mr Bradley credible. On the other hand, we do find Mr Ruaneto be an honest witness. Accordingly, wherever there is a conflict betweenthe evidence of Mr Bradley and that of Mr Ruane, we accept Mr Ruane's evidence anddiscredit that of Mr Bradley.[21] Why have we made these assessments of credibility? The first and perhapsmost telling point relates to Mr Bradley's explanations for his semen located onthe electric blankets on the beds of A and R. Consistently up to the trial, Mr Bradleyhad explained to Mr Ruane that he and his wife on occasions "had sex on the children'sbeds". He did that in the 'Possible Situations' document he sent Mr Ruane shortlyafter retaining him in May 2016. He confirmed it in an email to Mr Ruane on30 August 2016:Yes, I can confirm [Mrs Bradley] and I have had sexual activities on both thosebeds.[Mrs Bradley] and I have had sexual encounters on those beds [22] Then, in his evidence at trial, Mr Bradley said the sex with his wife had beenon the bedclothes while they were on the floor. Before us Mr McRae cross-examinedMr Bradley about that:Q. And yet your story changed at trial – didn't it – to on the bed clotheson the ground.A. I put it out there at the trial. It is what it is.[23] That was the response of a man who had been exposed as a liar. We surmisethat at some point Mr Bradley and/or his wife realised that the explanation Mr Bradleyhad given to Mr Ruane was inconsistent with the location of Mr Bradley's semenstains on the electric blankets. So Mr Bradley changed his story. Further, in supportof this appeal, Mrs Bradley swore an affidavit recalling one occasion on which "Chrisand I ended up having sex on an electric blanket on the bedroom floor". We revert toMrs Bradley's version in [69]–[70] below.[24] Second, one of Mr Bradley's submissions on appeal is that Mr Ruane was notproperly prepared for the trial, and had not properly briefed Mr Bradley should heelect to give evidence. In his first affidavit Mr Bradley sought to minimise his pre-trialattendances on Mr Ruane. Amongst other things, he stated:A meeting was scheduled for 1 December 2017 but it was cancelled byMr Ruane. I recall that I had a broken achilles at the time and my leg was inplaster. I instead met with him on a Friday prior to the trial at his office inRiccarton.[25] Mr Ruane answered this by putting his time records in evidence. Those recordsinclude 1½ hours for a meeting at Mr Ruane's office in Riccarton on Friday,1 December 2017. Mr Ruane described in some detail what he had covered withMr Bradley in that meeting: we refer to some of that in [77] below in dealing withMr Bradley's election to be tried by a jury. Thus, we find that Mr Bradley's assertionthat the 1 December 2017 meeting was cancelled by Mr Ruane is untrue.[26] Third, and also in support of his assertion that Mr Ruane was ill-prepared forthe trial, Mr Bradley deposed:12. Part way through the trial Mr Ruane was so late that the trial wasalmost called off.13. In my view, Mr Ruane was underprepared and lacked focus duringthe trial, the latter due to him juggling other cases during the trial.He was always late and flustered.[27] In response, Mr Ruane exhibited the Court taker's log of the trial. The logshows the court starting promptly each morning. Mr Ruane deposed that he wasstaying in motel accommodation in Timaru. He travelled down to Timaru onthe Sunday before the trial started on Monday 11 December 2017 and remained therefor the rest of that week. The following week he returned to Timaru on the morningof Monday, 18 December. The log for that morning shows the jury coming into courtat 10.08 am.[28] Mr Ruane explains that the trial was adjourned over Tuesday, 19 December toenable him to travel to Nelson for a sentencing in the District Court there that day.He was back at court in Timaru in time for the court to start at 9.04 am on Wednesday20 December (a 9 am start had been arranged). It follows that there is no truth inMr Bradley's statement.[29] In dealing with the points on appeal we will refer to other instances in whichwe have been unable to accept Mr Bradley's evidence.[30] By contrast Mr Ruane's evidence was generally supported by the letters hewrote, or the notes he made, at the time, or by his time records. Where he had madean error, or overlooked something, Mr Ruane readily accepted it. Examples of thatare his overlooking Mr Bradley's instruction that he wished to change his election toa judge alone trial, and also a separate instruction to seek a transfer of the trial venueto Christchurch. Mr Ruane also allowed that, with the benefit of hindsight, he mighthave done some things differently. For example, he accepted that, with the benefit ofhindsight, he might have applied for a ruling as to the admissibility of Dr Miller'sevidence.The grounds of appealGround 1: The EVIs of A and R should have been excluded[31] We set out in [3]–[7] above the sequence of events that led to A and R beinginterviewed at the CYFS office in Timaru on 11 May 2016. When the two girls arrivedthey were met by Constable Liggett who led what was described as a "meet and greet"session with them. The Constable did not take notes of this initial meeting. She saidshe explained to the two girls why they were there and the general nature ofthe allegations. Under cross-examination, Constable Liggett seemed to accept thatinterviewing the two girls together in that way was not best practice, but explained shehad done it that way because of time pressure. The evidential interviews then began.R was interviewed first and made detailed disclosures about the sexual offending ofwhich Mr Bradley has now been convicted.[32] The interview with A then began. The interviewer was Ms Hartemink, a socialworker, with Constable Liggett monitoring. During the first part of this interview Adid not say anything about sexual abuse by Mr Bradley. Ms Hartemink then brokethe interview to confer with Constable Liggett. When she returned to the interviewroom the following exchange took place:DH Okay [A], you know [R] came in earlier?A Mm.DH Sat there where you are today?A YeahDH And she talked with Christine before.A Mm hmm.DH And she talked about some stuff that happens, that Chris does whenhe comes into your bedroom.A Yes, that is exactly the same.DH Mm.A To me.DH Mm. Tell me more about that.A I don't want to.[33] Following that exchange, A began talking about being sexually abused byMr Bradley. Under cross-examination, A accepted that she had discussed with R whatR was going to say, and accepted also that if she did not support R she was "letting herdown". She denied that what she and R had said was untrue.[34] During the trial, after A, R and Constable Liggett had given their evidence,the Judge held a voir dire as to the admissibility of the EVIs. The following capturesthe gist of the Judge's ruling:7In the end, although one could criticise aspects of one stage or another, thereis no actual evidence of tainting to the point where it affects admissibility anda mistrial should be declared because the jury is seized of evidence which isnot capable of being relied upon whether on grounds of fairness or reliability.[35] Ms Toohey essentially repeated to us the submissions Mr Ruane had made tothe Judge in the voir dire. She argued that the Judge erred in not excluding the EVIsas evidence that had been unfairly obtained and was unreliable. The unfairnessresulted from the interview protocols not being followed. Ms Toohey focussedparticularly on the fact that A had not disclosed any sexual abuse until she was toldthat R had.7 R v Bradley [2017] NZDC 28556 at [6].[36] However, Ms Toohey made it clear to us that Mr Bradley's primary submissionwas that the Judge, in giving her ruling, did not have the assistance of evidence fromDr Sarah Calvert. Dr Calvert is a clinical psychologist practising in Auckland.She completed a report dated 13 November 2017 for Mr Ruane about the efficacy ofthe EVIs, and provided Mr Ruane with information to assist him, shouldthe admissibility of those interviews be challenged. We revert to Dr Calvert in [39]below.[37] We take the view that there was no proper basis to exclude the EVIs.This Court rejected similar challenges in K (CA26/2014) v R and, earlier, inBlagojevich v R.8 The threshold for admissibility under the Evidence Act is relevance:s 7. As this Court acknowledged in K (CA26/2014) v R, it is conceivable that evidencecould be so unreliable as to be irrelevant.9 But, if that very high threshold for exclusionis not met, then the submission that the evidence should be ruled inadmissible becomes"not sustainable".10[38] We agree with the Judge that the EVIs were admissible. Assessingthe reliability and credibility of what A and R said then became a matter for the jury.It is fundamentally, indeed constitutionally, wrong for a trial Judge to usurp the jury'sprovince of assessing the reliability and credibility of admissible evidence.11[39] Mr Ruane gave careful consideration to the report of Dr Calvert. He set outhis advice in a memorandum dated 13 December 2017 addressed to Mr Bradley. Theseare the first and last paragraphs in that part of the memorandum:Dr Calvert11. I have reviewed Dr Calvert's report several times. It is not as helpfulas it might be. She makes some very general comments aboutthe interviewing process and about what lead [sic] up to the interviewsbeing conducted.8 K (CA26/2014) v R [2014] NZCA 229; and Blagojevich v R [2011] NZCA 217.9 Blagojevich v R, above n 8, at [9].10 At [14].11 K (CA26/2014) v R, above n 8, at [17]. Also R v S CA201/1995, 22 September 1995 at 3–4applying the decision of the House of Lords in R v H [1995] 2 AC 596 (HL) at 613 perLord Griffiths.15. Again, based on a reading of Dr Calvert's report, I do not think thereis anything to be gained by calling her to give evidence. I say this alsohaving regard to what seems to me to be something of a cut and pastereport. I note that Dr Calvert has referred to one of the girls byan incorrect name.[40] Having ourselves read Dr Calvert's report, we consider Mr Ruane's assessmentwas a reasonable one. We cannot accept Ms Toohey's submissions that Mr Ruaneerred in not calling Dr Calvert and that the trial Judge's ruling may have been different,had she had the benefit of evidence from Dr Calvert.Ground 2: The expert evidence of Dr Miller as to genital warts should have beenexcluded[41] Dr Miller gave evidence for the Crown in the trial. She is a paediatrician whoexamined A and R on 20 May 2016. She found both girls had vulvo vaginitis.Dr Miller described this as effectively a "neutral finding", since it is common in younggirls. A little over a year later, on 26 May 2017, A was examined again and found tohave genital warts, an HPV infection. The doctor gave evidence that the severity ofthe warts was such as to require their surgical removal under general anaesthetic, anddescribed their removal by "diathermy (removed with a hot blade which both cutsthrough the mucosa and seals bleeding vessels)".[42] Ms Toohey submitted that it was "astounding" that the Judge let this evidencein, particularly the graphic detail of the surgical removal of the warts. She argued thatthe prejudicial value of this evidence outweighed its probative value, which at mostwas that A had been sexually abused at some point before she was examined inMay 2017. Accordingly, the Judge should have ruled the evidence out under s 8 ofthe Evidence Act.[43] Ms Toohey supported this submission with two further points. First, shesubmitted that the Judge had not directed the jury as to the proper use of this evidence,although she conceded that the Crown and defence cases on the evidence had beenproperly summed up. Second, when sentencing Mr Bradley, the Judge had held thatthe evidence in relation to the genital warts on A was not an aggravating factorthe Judge could take into account. That led Ms Toohey to pose the question: how thencould the evidence be admissible in the trial?[44] We do not accept Ms Toohey's argument. We consider the evidence wasproperly admissible because it was substantially helpful on the issue of whether A hadbeen sexually abused. The evidence established that it was likely she had been.As the Crown accepted in closing to the jury, the evidence did not implicateMr Bradley as the abuser, but it was one strand in the circumstantial case against him.[45] When sentencing Mr Bradley, Judge Maze explained that she could not takeinto account the genital warts because the Crown could not prove beyond reasonabledoubt that A had contracted them from Mr Bradley.12 That correctly statedthe position.[46] We accept that it would have been preferable for Dr Miller's evidence aboutthe removal of the warts to have been excised, because it was not relevant to any trialissue. And perhaps the Judge could have been more helpful in directing the jury as tothe use of Dr Miller's evidence, although the Judge was entitled to the view that nodirection was needed. But these matters fall far short of establishing a miscarriage ofjustice.[47] A subsidiary aspect of this ground is Mr Bradley's criticism of Mr Ruane fornot advising him that the admissibility of Dr Miller's evidence could be challenged.Mr Bradley deposes that he would have instructed Mr Ruane to challenge thatevidence had he known that he could.[48] Mr Ruane responds to this criticism in a very detailed way in his secondaffidavit, annexing his correspondence with Mr Bradley and with Dr Min Lo, fromwhom Mr Ruane obtained a report about Dr Miller's findings. Dr Lo is a forensicphysician practising in Auckland and, like Dr Miller, a SAATS practitioner. We neednot go further into Mr Bradley's criticism. Suffice to say that we do not accept it. Itis clear that Mr Bradley has forgotten about the endeavours Mr Ruane undertook tosee whether there were avenues to challenge the relevance or force of Dr Miller'sevidence in the trial.[49] This second ground of appeal also fails.12 R v Bradley, above n 1, at [9].Ground 3: Real risk jury had been tainted; Judge erred in not declaring a mistrial[50] Late on 14 December 2017, the fourth day of the trial, the Judge was told thata juror (Juror H) had brought some newspaper articles into the jury room.The following morning, after discussion with counsel in court for chambers (inMr Bradley's presence), the Judge made inquiries. She spoke first to the foreman ofthe jury, who confirmed there had been no discussion about the newspaper clippingsin her presence. The Judge then spoke to the juror who had alerted the court attendant.This juror told the Judge he had become aware of the newspaper clippings in the juryroom the previous day, but had not read them and the juror who had brought them inhad not talked to any other juror about them. This juror had assumed the clippingswere about the trial. The Judge next spoke to Juror H, who said he had not shownthe two clippings he had brought into the jury room to any other juror, nor discussedthem with other jurors. At Mr Ruane's request, the Judge asked Juror H whether hehad done any other research. Juror H said he had: he had looked at several websitesin relation to genital warts. Again, he confirmed to the Judge that he had not discussedthis research with other jurors.[51] The Judge then decided she must discharge juror H. She brought the remainingjurors into court. After reminding them of the importance of their not making theirown inquiries or discussing the trial with other people, she asked each juror to indicateon a separate piece of paper whether they had been reading the local newspaper or anyother media, or had looked at any "internet" related outlet for any reference to the case.One juror responded that he had read media reports, most said they had seen headlinesin the newspaper, but none said they had conducted any independent research ordiscussed the case outside the jury room.[52] After the jury had gone out, the Judge indicated a tentative view thatthe remaining jurors had not been tainted. Neither counsel asked the Judge to declarea mistrial. The Judge then discharged juror H and the trial continued with 11 jurors.[53] Ms Toohey advances two submissions based on these events. First, shesubmits the Judge erred in not directly asking the remaining 9 jurors whether they haddiscussed juror H's research about the genital warts. She likens the position here tothat in Guy v R and R (CA679/2015) v R.13 In those cases it was not known whetherthe jury had seen the extraneous material, and the court considered it necessary toproceed on the basis that they had. The position here was different. The Judge askedjuror H whether he had discussed his research with other members of the jury, and hesaid he had not. The Judge also had no reason to disbelieve what juror H had told her:he had been candid about what he had done, and what he had not done. Certainly,the Judge did not direct the same inquiry to the other 11 members of the jury. But weaccept the Crown's submission that the Judge was wise not to do that, because it riskedhighlighting the genital warts issue, and perhaps conveying to the jury that there wasinformation about genital warts that they should not see.[54] We do not consider that a fair-minded member of the public, sitting at the backof the court throughout the discussions and inquiries on the afternoon of 14 Decemberand the morning of 15 December, would have had any reasonable concern thatthe remaining 11 jurors could discharge their task impartially.14 Accordingly we donot accept that a miscarriage of justice occurred.[55] Ms Toohey's second point was based on Mr Bradley's evidence that, bythe time the jury issue arose, he was "feeling very unhappy with Mr Ruane'srepresentation, and I wanted him to seek a mistrial so that I could engage a differentlawyer". At the end of Court on 14 December, Mr Ruane's view was that it was toodangerous to proceed, and he should seek a mistrial. He conveyed that to Mr Bradleywho agreed, signing Mr Ruane's note to that effect.[56] In the light of the Judge's inquiries of the jury on the morning of 15 December,Mr Ruane changed his mind. Mr Ruane dictated a file note that reads:FILE NOTE15/12/17 at 10:50amSpoke to Bradley regarding the Judge's indication that there had been notainting of the Jury and that [Juror H] had already been discharged. Bradleyaccepted that there was no basis on which I could responsibly argue that13 Guy v R [2014] NZSC 165, [2015] 1 NZLR 315; and R (CA679/2015) v R [2016] NZCA 444 at[45].14 R v C (CA395/2008) [2009] NZCA 272, [2010] 2 NZLR 289 at [35].the activities of [Juror H] had been such as to be "capable of affectingthe verdict". He instructed me he wanted to carry on 11 Jurors.CMR[57] Questioned about that Mr Ruane said: And, again with the benefit of hindsight, it would be good to write out andhave Mr Bradley sign off on that typed file note at page 79. But I am quitesure in my mind that Mr Bradley had changed his mind by that stage of things,perhaps in light of Judge Maze's clear view that, in her view, the jury pool hadnot been tainted and that we should press on with the trial. I was a littlesurprised with that, to be frank, but those were his instructions and I hada dictaphone with me and I dictated those at the first opportunity I had [58] Mr Bradley did not accept that. There was the following exchange inMr McRae's cross-examination of Mr Bradley before us:Q. Mr Ruane says that he spoke to you regarding the Judge's indicationthat there had been no tainting of the jury and that [Juror H] hadalready been discharged and he's noted Bradley accepted that therewas no basis on which I could responsibly argue that the activities of[Juror H] had been such as to be capable of affecting the verdict. Heinstructed me he wanted to carry on with 11 jurors.A. Mr Ruane is after the fact. The Judge had already made the decision.The actions had occurred by the time I was presented with it inthe cell. It did not matter whether I said a monkey hangs from a tree.It had happened.Q. So what did you say to him?A. I wanted a mistrial.Q. And he hasn't recorded that in his file note then.A. That is entirely up to him.[59] For the reasons we have explained, we accept Mr Ruane's evidence thatthe position was as recorded in his file note, and we disbelieve Mr Bradley's account.[60] This ground of appeal also fails.Ground 4: Further evidence available not called[61] In support of his appeal, Mr Bradley has filed affidavits from his wife,Mrs Bradley and five other family members. In his first affidavit Mr Bradley deposedthat he gave Mr Ruane a list of 13 witnesses he wanted Mr Ruane to speak to, andpotentially call at trial. He states that he remembers writing out a list for Mr Ruane.The five people who have now sworn affidavits were on this list.[62] Questioned by Ms Toohey, Mr Ruane said that he had not found on his file anylist of witnesses given to him by Mr Bradley and has no recollection of such a listbeing provided to him. He said that only "in the most very general terms" hadMr Bradley suggested to him that members of the family could potentially giveevidence. Mr Ruane accepted that Mr Bradley's son, J, had attended the trial but not,as he recalled, with a view to giving evidence.[63] We have already referred to the 1½ hour long meeting Mr Ruane had withMr Bradley on 1 December 2017, a little under two weeks before the trial. Withthe exception of Mrs Bradley, none of the other potential witnesses mentioned byMr Bradley feature in Mr Ruane's notes of this meeting.[64] Again, we accept Mr Ruane's evidence that he was not instructed to brief thesewitnesses, with a view to calling them, and we disbelieve Mr Bradley's evidence.[65] Quite apart from that, we have read the affidavits of the potential witnesses anddo not consider their evidence, if called, could have had any impact on the outcome ofthe trial. The key point is the one identified by Mr Ruane under cross-examination:none of these witnesses, nor all of them in combination, "could close offthe opportunity" Mr Bradley had to offend. Mr Bradley himself accepted that he wasoften left alone in the house with the two girls.[66] Mrs Bradley was a potential witness. Mr Ruane's notes of the 1 December2017 meeting record that she and Mr Bradley were still together (although he hasadded a question mark in parenthesis after that), and that she was prepared to giveevidence. As we have mentioned, she attended the trial with a view to doing that (shesat out of court).[67] In the end, Mr Ruane decided not to call Mrs Bradley. His contemporary noterecords:On reflection I do not think that anything will be gained by calling[Mrs Bradley] to give evidence. She was not present when these events arealleged to have occurred, nor can she give evidence about what was said at the[complainants'] household once the allegations emerged.[68] What evidence might Mrs Bradley have given? Ms Toohey focussed on twoaspects. First, she put it to Mr Ruane in cross-examination that Mrs Bradley'sevidence would have provided grounds to attack the evidence of the school teachersin relation to A and R arriving late at school. Mr Ruane responded:Well, I don't think so because, in particular, [Mrs Bradley] had left the housebefore the children went to school, almost inevitably [invariably?] as Iunderstand it. So, Ms Bradley couldn't give any evidence about whenthe children actually arrived at school [69] Second, and more importantly, Ms Toohey put to Mr Ruane that Mrs Bradley'sevidence would have corroborated Mr Bradley's explanation as to how his semencame to be deposited on the electric blankets. Mr Ruane accepted "it's a possibility".That answer reflects the concern Mr Ruane had already expressed about Mrs Bradleygiving evidence about the semen stains on the electric blankets. The concern arisesfrom Mr Bradley changing his explanation, in the way we have outlined in [22]–[23]above. Although Mr Ruane did not articulate his concern this directly, we think it wasthat Mrs Bradley was going to give untrue evidence about the semen stains, and thatthis might be exposed under cross-examination. The explanation Mrs Bradley offersin her affidavit serves only to underline Mr Ruane's concern. She states:Sperm on electric blanket48. I recall on one occasion on a Saturday afternoon and Chris had workedin the morning and I had gone in with him. It was one of the weekendsthat we had no children. It was a beautiful day and we strippedthe beds and rotated the mattresses etc. It was howling nor'west soeverything was going to get dry, so we washed blankets andeverything off the beds. It was an unseasonably warm winter's daybecause of the nor'wester.49. Some of the bedding was strewn on the bedroom floors, Chris and Iended up having sex on an electric blanket on the bedroom floor.I didn't realise that it had gotten fluid on it but I wouldn't have washedit anyway, but it was one of the items of bedding that wouldn't getwashed as it was electrical. It looked really clean and might have been3–4 years old but had hardly been used.50. Also, [J] has been in that bed with his girlfriend and [M] has slept inthere on it too.[70] This account refers to sex "on one occasion" on "an electric blanket onthe bedroom floor". It does not explain how the semen stains were on two electricblankets. Nor does it explain how those semen stains came to be at the location oneach of the two electric blankets that we have detailed in [10](a) and (b)] above.Her reference to Mr Bradley's son J and his girlfriend sleeping on "that bed" similarlydoes not explain how the stains came to be on both beds, and it ignores the DNA resultswe have detailed in footnote 2 above. This was not J's semen.[71] For those reasons, we consider Mr Ruane's decision not to call Mrs Bradleywas a reasonable, if not prudent, one. In no way can it be said to be an error that ledto justice miscarrying for Mr Bradley.[72] This ground of appeal also fails.Ground 5: Trial counsel errors[73] Ms Toohey submitted that seven errors by Mr Ruane, at least in combination,had deprived Mr Bradley of a fair trial and resulted in a miscarriage of justice.(a) Instructions to change election[74] By email on 11 June 2016, Mr Bradley confirmed to Mr Ruane that he electedtrial by jury.[75] On 17 July 2017 Mr Bradley wrote to Mr Ruane about various matters relatingto his trial, which at that stage was scheduled to commence on 31 July. Toward theend of that letter Mr Bradley said:It is at this point of time that I request a trial by judge instead of trial by jury,as the trial by jury can take for ever and presents without the professionalismof a judge.[76] Mr Ruane readily acknowledged that he had "overlooked" this instruction.He sent an email to Mr Bradley on 21 July, mainly about Dr Miller's proposedevidence for the Crown. There was no acknowledgment in this letter of Mr Bradley'sinstruction to change his election.[77] Mr Ruane's position is that Mr Bradley did not again raise his wish to changehis election. In particular, at the 1½ hour long meeting at Mr Ruane's offices on1 December 2017 (a little over a week before the rescheduled trial began), he said hetook Mr Bradley through the trial process. He discussed the jury list, the process ofselecting the jury and of challenging potential jurors. Mr Ruane says he gaveMr Bradley a copy of the jury list, which he went through out in the waiting room atMr Ruane's offices. Mr Ruane said Mr Bradley made no mention of his wish to switchto a judge alone trial, nor did he mention that Mr Ruane had not responded to hisearlier instruction about that. Ms Toohey cross-examined Mr Ruane about this:Q. [Mr Bradley] says he also discussed that [change of election] with youat the meeting of 1 December.A. No, and had he done so I would certainly have given him advice aboutthat because there still would have been time to make the appropriateapplication and I think with the way juries are summonsed therewould probably have been enough time to turn off the jury panel.[78] Under cross-examination Mr Bradley claimed he had raised his wish to changehis election with Mr Ruane at the 1 December meeting:Q. So in that 1st of December meeting, you didn't tell him either of thosethings [change of venue; change of election]?A. I did tell him such. I brought it very clearly to his attention.He dismissed it.[79] Again, we reject Mr Bradley's evidence on this aspect, and accept that ofMr Ruane. There is no documentary record after 17 July 2017 of Mr Bradley againraising his wish to be tried by a Judge alone. If that was still his wish, it isinconceivable that Mr Bradley would not have raised it with Mr Ruane atthe 1 December 2017 meeting, when they discussed the way the jury trial wouldproceed and when Mr Ruane was given the jury list to look at. Unavoidable isthe conclusion that Mr Bradley did not renew his instructions as the jury trialapproached. In any event, we do not accept that any unfairness or injustice resultedto Mr Bradley as a result of being tried by a jury, and Ms Toohey did not articulatehow this might have arisen.(b) Instruction to seek change of trial venue[80] Much the same applies to this criticism of Mr Ruane. He accepts that heoverlooked Mr Bradley's instruction, in an email of 20 June 2016, to seek "that the trialis held in the Christchurch High Court". The trial was subsequently scheduled for theDistrict Court in Timaru in July 2017, and then postponed to December 2017.In the face of this, Mr Bradley was asked in cross-examination why he had not raisedthe change of venue with Mr Ruane at the 1½ hour briefing session on 1 December2017:Q. You did not say to Mr Ruane I want the venue changed of my trial?A. The venue had already been made comment of previous and followup to that there was a lot of things that were brought to Mr Ruane'spoint. It got to a stage where I'd literally thrown up my hands.This man was not listening to me whatsoever.[81] Mr Ruane's evidence was that, following his 20 June 2016 email, Mr Bradleynever again raised his request that the trial venue be transferred to Christchurch, evenafter the trial had been set down for hearing in the District Court at Timaru.[82] Just a few days after Mr Bradley's request for a change of trial venue,Mr Ruane met with Mr Bradley and his father at the latter's home in Ashburton on24 June 2016. Mr Ruane had appeared that morning in the High Court at Timaru andcalled in on his way back to Christchurch. On 27 June Mr Ruane wrote to Mr Bradleyfollowing up on "various outstanding matters following our meeting last Friday24 June ". Although this letter made no mention of Mr Bradley's earlier request fora change of trial venue, there was no follow up by Mr Bradley, or at least there isnothing in writing. Again, we accept Mr Ruane's evidence that there was no followup by Mr Bradley on his 20 June 2016 request that Mr Ruane seek a transfer of the trialto Christchurch. We do not accept Mr Bradley's contrary evidence.[83] There is the further point, made by Mr Ruane, that, had he been aware ofMr Bradley's request, he would have advised that there was no basis to seek a transfer.Mr Ruane had not provided him with any material suggesting that it would not bepossible to empanel an impartial jury in Timaru.[84] Before leaving this point, we note that we have not overlooked whatMr Bradley's father, Mr David Bradley, stated in paragraphs [26]–[27] of the affidavithe swore on 6 September 2019 in support of this appeal. What Mr Bradley seniorstates there is demonstrably untrue or inherently unlikely. We make four points:(a) Mr Bradley senior estimated the meeting at his home was "about sixmonths" before the Court case. The meeting was on 24 June 2016 andthe trial started on 11 December 2017, so he is well out.(b) He cannot be correct in saying that Mr Ruane told his son the trial date,because it would not have been fixed as of June 2016.(c) He said that his son indicated he wanted a judge alone trial, butMr Ruane told him he "will have a jury and that's that". The meetingwas over a year before Mr Bradley requested, on 17 July 2017, a trialby judge alone. So this cannot be correct either.(d) It is inherently unlikely that Mr Ruane would have told his son "you'reguilty". We prefer Mr Ruane's evidence that he certainly did not saythat — that it is not his role as counsel to pronounce on guilt orinnocence.(c) Instructions to brief potential defence witnesses[85] We have dealt with this, in [61]–[72] above. Briefly, to recap, we considerMr Ruane's decision not to call Mrs Bradley was a reasonable, if not prudent, one. Weagree with Mr Ruane's assessment that none of the other witnesses, even incombination, would have advanced the defence case, indeed that calling them mayhave reinforced the Crown case. And, in respect of his recollection of the meetingwith Mr Ruane at his home on 24 June 2016, we have queried the accuracy of whatMr Bradley senior states.(d) Failure to brief Mr Bradley fully before he gave evidence[86] Mr Bradley accepts that Mr Ruane prepared and gave him a four page outlineof his proposed evidence. This took the form of a series of topic headings, with pointsto be covered under each. There is perhaps some disagreement as to when Mr Ruanegave this to Mr Bradley. Mr Ruane recalls that he discussed it with, and gave it to,Mr Bradley at the briefing session at his office on 1 December 2017, and thatMr Bradley took it away to think about it. Mr Bradley is equivocal about that.[87] Mr Bradley then accepts that Mr Ruane spoke to him on the Friday afternoonat the end of the first week of the trial because, if Mr Bradley was to give evidence,then it would be on the following Monday. Mr Ruane agrees and states thatMr Bradley "certainly got another copy of [the brief] on the Friday before he gaveevidence".[88] There is agreement also that on Monday 18 December 2017 Mr Ruane againspoke to Mr Bradley, who elected to give evidence and signed a written instruction tothat effect.[89] Ms Toohey's submission under this head really came down to a criticism ofthe form of the brief of evidence Mr Ruane had prepared. She categorised the briefMr Ruane had prepared as "wholly inadequate" in terms of the length and substanceof the trial.[90] The difficulty with this head of complaint is that Mr Bradley does not point toany item of relevant evidence that Mr Ruane failed to lead from him, nor does hesuggest that any relevant topic was not adequately covered by Mr Ruane. The resultis that this criticism comes to nothing.(e) Failure to obtain Mr Bradley's consent to the statement of admitted facts[91] The statement of admitted facts was dated 15 December 2017 and was signedby Mr Ruane as counsel. Amongst the matters admitted were the school attendancerecords for A and R, listing the number of days in each of 2014, 2015, and 2016 wheneach of A and R had arrived at school late.[92] The genesis of this statement was a ruling the Judge gave on the first day ofthe trial, 11 December 2017.15 The ruling related to the intended evidence of severalteachers at the girls' school. Amongst other things, those teachers were to producethe school's attendance records for A and R. Referring to those records, the Judgestated:16Provided counsel can agree on the format for presentation of that material, notone witness will be required to give that evidence; it can be produced byconsent.[93] In his affidavit Mr Bradley deposed that he "did not see or consent tothe statement of admitted facts". He says that he wanted to challenge the way in whichthe records were kept, because he "did not accept that the girls were late on all ofthe dates represented in the statement of admitted facts".[94] In his affidavit Mr Ruane deposed that he "certainly did discuss the statement of agreed facts" with Mr Bradley who did not indicate that he objectedto it. Nor did he provide Mr Ruane with any material basis on which he could questionthe teachers as to the way in which they had kept the records.[95] In cross-examination, there was this exchange between Ms Toohey andMr Ruane in relation to the s 9 Evidence Act admission:A. I explained to Mr Bradley what that was. It would mean thatthe teachers would not be called and indicated to him that this wasan appropriate way of dealing with evidence that was not contestedand he raised no objection. And, on that basis, I went ahead andaccepted the s 9 admissions which I think Mr McRae had drafted,rather than me, and they were presented. It was on the basis thatMr Bradley's own evidence was going to be that the girls would belate from time to time. There was no suggestion from Mr Bradley thatthe girls were not late.Q. No, but you knew that he challenged the accuracy of the schoolrecords as to lateness?A. I think it's fair to say that my understanding of his position was thatthe records were potentially a little inaccurate but that heacknowledged that the girls were late from time to time and therecould be no challenge to that.15 R v Bradley [2017] NZDC 28140.16 At [18].[96] Once again, we accept Mr Ruane's evidence and reject that of Mr Bradley.But this is also a criticism that could not sound in unfairness or injustice. That is forthe reason explained by Mr Ruane in the passage we set out in [95] above.(f) Mr Bradley took sleeping pills on the morning he gave evidence[97] In his affidavit Mr Bradley deposed that he had mistakenly taken twoZopiclone sleeping tablets before arriving at Court on Monday 18 December, the dayhe gave evidence. He said that he told Mr Ruane this, but Mr Ruane took no action.Under cross-examination, Mr McRae asked Mr Bradley about this:Q. Well the starting point would have been to actually have toldMr Ruane – wouldn't it?A. I told him. He chose to dismiss it.Q. If nothing happened with Mr Ruane then you'd tell the court.A. Why would I do that if I did not know to do that? He's supposed tobe representing me why didn't he do it?[98] In his affidavit Mr Ruane said that Mr Bradley had not told him he had takenany medication, let alone an incorrect medication, and said he would have takenappropriate steps had he been told. Under cross-examination, he was asked againabout this:Q. Just a last point in relation to the sleeping tablets, [Mrs Bradley] hasdeposed that she was also present when Mr Bradley told you that he'dtaken sleeping tablets by accident?A. No. I have no recollection at all of being told during the course ofthe trial that he had over-prescribed himself and had he done so,there's no doubt at all that I would have made some enquiries and ifthere was a nurse available or a medic available at the Court, wouldhave got someone to look at him. Because, given that he was aboutto give evidence, there's no way in the world I would have permittedhim to give evidence unless it was clear that he was in a fit state to doso. Now, it's clear that he was nervous and anxious about givingevidence but that's not unusual when a defendant comes to giveevidence.[99] Yet again we prefer Mr Ruane's evidence, and do not accept Mr Bradley'saccount. We of course have no way of knowing whether Mr Bradley had mistakenlytaken two Zopiclone on the morning of 18 December, as he described. However, if hedid, and if he told Mr Ruane about that, we have not the slightest doubt that Mr Ruanewould have taken appropriate steps, including seeking an adjournment if required.It is inconceivable that any competent counsel, in that situation, would simply dismisssuch a report from a client. It is equally inconceivable that a Judge, if she noticed anywitness struggling with sleepiness or otherwise in the witness box, would not respondappropriately.[100] Further, there was no indication that Mr Bradley experienced any sleeping pillrelated difficulties while giving evidence. He accepted that he had given evidence fora lengthy period of time, without falling asleep. Mr Bradley did not identify any partor parts of his evidence that were affected by the sleeping pills he said he had taken.Ms Toohey did not submit to us that this had happened. Her submission was simplythat Mr Ruane had done nothing when Mr Bradley told him about the sleeping pills.[101] This criticism of Mr Ruane also fails.(g) Pressure from trial judge to "fast track" the trial[102] The Judge was undoubtedly — and understandably — concerned to concludethe trial before the Christmas vacation. But, only in one respect, did Ms Toohey putit to Mr Ruane, and submit to us, that time pressures on the Court translated into erroron Mr Ruane's part. That single aspect was Mr Ruane's decision not to callMrs Bradley. We have already, in [66]–[71] above, held that Mr Ruane's decision notto call Mrs Bradley was reasonable, if not wise.[103] Relevant to whether there would have been sufficient trial time to callMrs Bradley and/or further defence witnesses is this exchange in Ms Toohey'scross-examination of Mr Ruane:Q. Mr Bradley says that he never instructed you not to call Mrs Bradley.That appears to be a decision that you made, Mr Ruane.A. Well, there was never a decision to call her, I think is the better wayof putting it. She was only ever potentially a witness and he was goingto give evidence which would have explained the presence ofthe semen on the bedding by sex on the bed. The implication is that– and, I think, the phrase he's used is that this was "fast-tracked" andthat's not the case. If I had come to the view that Mrs Bradley'sevidence was likely to be helpful and that the raft of other witnesseswho he wanted to call were likely to be helpful, then part of my jobwas to stand up to the judge and say, "We don't have enough time".[104] Mr Ruane was a senior and very experienced criminal barrister well capable ofensuring that Mr Bradley received a fair trial including, in particular, that all witnesseswhose evidence might have advanced the defence were called. The consequence isthat this last criticism of Mr Ruane also fails.Conclusion on the appeal against conviction[105] None of the five grounds of appeal against conviction has succeeded. We aresatisfied that Mr Bradley's trial was fair, and that justice was done. As Mr Ruanereadily accepted, he overlooked Mr Bradley's instructions that he wished to changethe election he had made to be tried by a jury, and also Mr Bradley's instruction toseek a transfer of the trial from Timaru to Christchurch. Fortunately, no unfairness orinjustice resulted.[106] Apart from those two oversights, we have not found any substance in the manycriticisms Mr Bradley levelled at Mr Ruane. In the course of dealing with this appeal,we have had to look thoroughly through the trial documentation, and throughMr Ruane's correspondence, memorandums and notes leading up to and duringthe trial. Having done that, and given Mr Bradley's wide-ranging criticisms ofMr Ruane, we wish to record our view that Mr Ruane discharged his task ina competent and thoroughly professional way. He did everything that couldreasonably be done to defend Mr Bradley in the face of a very strong Crown case.Appeal against sentence[107] The Crown submitted to the Judge that Mr Bradley's offending was within rapeband four as described in this Court's decision in R v AM, and should attract asentencing starting point of 16 to 17 years' imprisonment.17 The Crown relied onthe High Court's sentencing decision in R v Swann in support.1817 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [109].18 R v Swann [2014] NZHC 2310.[108] In his submissions, Mr Ruane submitted the offending was at the top ofband two or the lower end of band three warranting a starting point of 12 to 13 yearsimprisonment.[109] In considering the aggravating factors, the Judge acknowledged that she "mustnot double count" and that "the exercise is not mathematical".19 She identifiedthe aggravating factors as:(a) The fact that there were two victims.20(b) The fact that both victims were vulnerable because they were young.21(c) The extent of the harm done to both girls.22 Both had sufferedpost-traumatic stress disorder and both were, by then, experiencinganxiety, distress, mistrust of adults, and anger. In relation to the harmto the two girls, the Judge noted they were sisters who were emotionallyclose one to the other, and very supportive of each other. The Judgesaid to Mr Bradley:23By abusing both, you had, in effect, deprived each of them ofthe ability to seek help from the other. They were bothhelpless in that situation.(d) The breach of trust — Mr Bradley was in the position of a parent.24[110] The Judge then said this:[12] Balancing the aggravating features, taking the case in relation to eachvictim separately, then increasing to reflect the fact that there were twovictims, and contemplating totality, the starting point still has to be to identifythis as mid-range band 3. I do take [Swann] into account but there are somedifferent aspects. I adopt a starting point of 15 years' imprisonment on eachof the charges concurrently to reflect the fact of the two victims. There is nobasis for reduction. I acknowledge you have no relevant previous convictionsbut neither can I give a credit for your previous blameless history. The end19 R v Bradley, above n 1, at [4].20 At [9].21 At [5].22 At [5].23 At [6].24 At [7].result then is the starting point and the term will be one of 15 years'imprisonment.[111] The Judge declined the Crown's request that she impose a minimum period ofimprisonment.25[112] Ms Toohey argued that the Judge should have imposed a sentence in the range13–14 years' imprisonment. That would place Mr Bradley's offending at the lowerend of R v AM rape band three: 12–18 years imprisonment.[113] Ms Toohey had two supporting submissions. The first was that the Judge hadadopted a mechanistic approach to sentencing, and had not made a proper evaluationof all the relevant aspects of Mr Bradley's offending. We do not accept that. Indeed, aswe have pointed out, the Judge specifically reminded herself that "the exercise is notmathematical". Ms Toohey did not identify any mitigating circumstance whichthe Judge had overlooked, or had not adequately factored in.[114] Ms Toohey's second criticism was that the Judge, in assessing the seriousnessof Mr Bradley's offending, had failed to analyse comparative case law, apart fromR v Swann. In support of a submission that the sentence was excessive, Ms Tooheyreferred to four cases.26 Given that R v AM was the appropriate guidance for the Judge,we are not assisted by reference to sentencing decisions of the High Court — R v Smithand Savage v R are in that category. This Court's decision in R v N was decided severalyears before the Court issued its guideline judgment in R v AM. Over a period of about2½ years the appellant in R v N subjected his stepdaughter, who was aged betweenseven and nine, to rape, sodomy, digital penetration and oral sexual connection. Onlywhen the young girl attempted to take her life, did the offending come to light. R v Nis listed in R v AM as an example of a case at the lower end of rape band four(16–20 years' imprisonment), although the Court went on to say the case "couldpossibly be treated as falling within rape band three because there is one complainantbut given the offending occurred over a period of years and the effect on the victimwas severe it is better dealt with in this band".2725 At [13].26 R v Smith [2015] NZHC 1992; Savage v R [2016] NZHC 1330; D (CA801/2013) v R [2014] NZCA369; and R v N CA88/205, 23 November 2005.27 R v AM, above n 23, at [109]–[110].[115] In R v N this Court upheld the sentence of 15 years' imprisonment andthe minimum period of imprisonment of 8 years. Although the offending in R v Nagainst the single complainant was more serious, there are two complainants here. Forthat reason, we are unable to accept Ms Toohey's submission that R v N "was plainlymore serious".[116] The other decision of this Court relied on by Ms Toohey isD (CA801/2013) v R. There, the appellant had raped his stepdaughter repeatedly overa period of about eight years, starting when the girl was five years old. He had alsoforced the girl to perform oral sex on him, to touch his penis, and on occasions he hadtied her hands or gagged her using insulation tape. The second victim wasthe appellant's stepson who was sodomised, forced to perform oral sex on him andmasturbate the appellant. Both victims were shown child pornography. Ms Tooheywas correct in submitting that the sentence of 15 years' imprisonment was upheld (thatwas both the sentencing starting point, and the end sentence imposed). But this Courtadded this observation:28 we accept [the Crown's] submission that the appellant's offending fellwithin rape band four, and could well have attracted a higher starting point.Further, we do not accept that the combined sentences resulted in a totalsentence that was manifestly excessive. An end sentence of 16 and a halfyears' imprisonment could well have been imposed in respect of the offendingagainst [the two complainants].[117] So, D (CA801/2013) v R provides no support for this appeal.[118] Mr Marshall referred us to a third decision of this Court, B (CA58/2016) v R.29The appellant had been convicted of six charges of sexually abusing one of hischildren, including a representative charge of rape resulting from repeated offendingover two years. This Court considered the positioning of the offending at the top ofband three or the bottom of band four of R v AM, and the sentence of 16 years'imprisonment, as "clearly appropriate" for offending that involved, in particular,"multiple rapes of a very vulnerable victim involving a significant breach of trust ina familial context where the offending could only have been executed with planning28 D (CA801/2013) v R, above n 32, at [43].29 B (CA58/2016) v R [2016] NZCA 432.and premeditation".30 The Crown is justified in submitting that that description isequally true of Mr Bradley's offending, save that he repeatedly raped two vulnerablechildren who were in his care.[119] In R v AM, in describing rape band four: 16–20 years, this Court said:[109] Perhaps the paradigm case of offending within this band is that ofrepeated rapes of one or more family members over a period of years as isillustrated by the present case. Offending of this nature, especially thatinvolving children and teenagers will attract starting points at the higher endof this band [120] In the light of that observation, Mr Bradley might consider himself exceedinglylucky that the Judge placed his offending in the middle of band three. That isparticularly so given that there were two child victims. Nor do any of the cases thatwe have reviewed in the preceding paragraphs provide any support for Mr Bradley'sappeal against sentence. Quite the contrary.[121] Accordingly, the appeal against sentence is also dismissed.Result[122] The appeal against conviction is dismissed.[123] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent30 At [71] and [78]. The final sentence was 17 years 9 months' imprisonment, but that includeda cumulative sentence imposed on a domestic violence charge of injuring with intent to injure.