THOMPSON v R [2023] NZCA 3

THOMPSON v R [2023] NZCA 3 [2 February 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203AND 204 OF THE CRIMINAL PROCEDURE ACT 2011IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA399/2022[2023] NZCA 3BETWEEN JAMIE ROBERT THOMPSONAppellantAND THE KINGRespondentHearing: 23 November 2022Court: Goddard, Woolford, Fitzgerald JJCounsel: A M Dooney for AppellantG A Kelly for RespondentJudgment: 2 February 2023 at 11.00 amJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of three years and seven months' imprisonment is quashedand substituted with a sentence of two years and 11 months' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Fitzgerald J)Introduction[1] Following a trial before Judge D J Orchard and a jury, Mr Thompson was foundguilty of one charge of sexual violation by unlawful sexual connection.1 He wassentenced to three years and seven months' imprisonment.2[2] Mr Thompson now appeals against his sentence on the basis that:(a) the starting point adopted by the Judge was too high; and(b) the discount given by the Judge for Mr Thompson's background shouldhave been greater, and the Judge should also have allowed discountsfor Mr Thompson's prior good character and time spent on remand onbail.[3] An appeal against sentence may only be allowed by this Court if it is satisfiedthat there has been an error in the imposition of the sentence and that a differentsentence should be imposed.3 The focus is not on the process by which the sentencewas reached, but on the correctness of the end result.4The offending[4] On 11 July 2020, Mr Thompson was at a friend's home in Whangārei.The evidence at trial was that Mr Thompson and his wife regularly went to the friend'shome to socialise at weekends and that on such occasions, significant quantities ofalcohol would be consumed. The Judge observed in her sentencing notes that thisparticular night was no different.[5] Mr Thompson was 32 years old at the time of the offending. The complainant,a 17-year-old young man, had travelled with his family to Whangārei to attend a tangi.The deceased had been a close friend of the friend of Mr Thompson and his wife, atwhose house they were staying that weekend. A wake was held at the friend's home1 Crimes Act 1961, s 128(1)(b).2 R v Thompson [2022] NZDC 14213.3 Criminal Procedure Act 2011, ss 250(2) and 250(3).4 Ripia v R [2011] NZCA 101 at [15].after the tangi, which evolved into a birthday celebration for the friend's teenagedaughter. The complainant and his family were present. Later in the evening, thecomplainant's family left to return to the hotel at which they were staying, though thecomplainant stayed on for the birthday celebration. The evidence at trial was thatduring the course of the evening, all those present, including the complainant, had alot to drink and were playing drinking games.[6] Mr Thompson, his wife and her son decided to stay overnight, as did thecomplainant. They all "bunked down" in the lounge. Mr Thompson, his wife and herson slept on a mattress on the floor and the complainant slept on a nearby couch.[7] The complainant woke in the early hours of the morning to the realisation thatMr Thompson had partially lowered the complainant's trousers and underpants, andhad put the complainant's penis into his mouth. Mr Thompson had also put thecomplainant's hand onto his (Mr Thompson's) penis. The complainant was shockedand exclaimed words to the effect of, "who are you, what are you doing?", to whichMr Thompson's response was a suggestion to the complainant that he was enjoyingwhat Mr Thompson was doing.[8] The complainant immediately got up and left the room and as he did so, lookedback and saw Mr Thompson continue to masturbate. The complainant went and spoketo the homeowner's daughter and told her what had happened. He was very distressed.She awoke her mother and initially the complainant was given a bed to sleep in, buthe left shortly thereafter and returned to the hotel where his family was staying.[9] Mr Thompson pleaded not guilty to the charge, his position at trial being thatthe offending had not happened. Mr Thompson gave evidence at the trial, thoughgiven the verdict the jury obviously did not accept his version of events.Materials before the Judge at sentencing[10] At sentencing, the Judge had before her Mr Thompson's criminal and bailhistory, a Provision of Advice to Courts (PAC) report and a cultural report for thepurposes of s 27 of the Sentencing Act 2002. She also had 14 character references inrelation to Mr Thompson, as well as two victim impact statements (from thecomplainant and his mother).Mr Thompson's criminal history[11] Mr Thompson has 10 prior convictions, many of which relate to excessive useof alcohol, including four convictions for driving with excess breath alcohol. He alsohas one conviction for burglary. That offending occurred in November 2009 andMr Thompson was sentenced to nine months' imprisonment. Community-basedsentences, fines and/or driving disqualifications were imposed for his other offending.Putting aside the present offending, Mr Thompson's last offending was in December2012 (driving with excess blood alcohol (third or subsequent)).The PAC report[12] The PAC report canvasses Mr Thompson's background and upbringing,recording that his parents had separated when he was very young and that his fatherwent on to have a number of subsequent partners. Mr Thompson spent his childhoodand early teenage years moving between his parents' homes. He reported having agood relationship with his mother and his stepfather, but that he did not get along withhis father's partners.[13] Mr Thompson said that he did not suffer any physical abuse as a child, butsuffered extensive sexual abuse from the age of 13 onward. The Crown does notdispute that this occurred.5 The offender was an older man who had evidently sexuallyabused other young men like Mr Thompson.6 The offending started after the man gaveMr Thompson a job working at a local café. He initially pressured Mr Thompson toperform sexual acts on him, and Mr Thompson said this escalated to three instancesof rape.7 Mr Thompson left school at 15 and through the offender, got a job at a localsupermarket where the offender worked. During this period, the sexual abusecontinued, which led to Mr Thompson drinking and experimenting with a range of5 The PAC report confirms that the man who sexually offended against Mr Thompson wasultimately convicted and sentenced to nine years' imprisonment.6 The report records Mr Thompson saying there were at least seven complainants but only two cameforward to police.7 There is nothing in the materials before us to verify the precise nature of the offending for whichthe offender was convicted.drugs. This resulted in him being thrown out of home by his father and quitting hisjob at the supermarket. He went to live with another male who was a member of theMongrel Mob gang (though Mr Thompson said he was never a member of the gang).He and the gang member were co-offenders to Mr Thompson's burglary offending in2009.[14] After being released from prison in 2010, Mr Thompson realised that his lifein Rotorua had spiralled out of control with drink-driving offending andmethamphetamine use, and decided that he needed to move away. He moved toWhangārei where he met his now wife and gained an apprenticeship in aluminiumjoinery, a trade in which he worked for approximately eight years until being arrestedfor the present offending.[15] Relevant to remarks made by the Judge in her sentencing notes,8 the PAC reportrecords that Mr Thompson said that he "all but gave up alcohol" upon moving toWhangārei, using it about twice a month and cannabis the same amount.[16] The report also records that Mr Thompson "respects the jury's decision", onlyadding that alcohol was present in the offending. The report writer states thatMr Thompson exhibited no remorse for his actions and minimised them by arguingthat he should not be sent to prison "as it would ruin his future and what was the pointof it".[17] The PAC report writer assessed Mr Thompson's risk of reoffending as low.Given the nature of the offending, however, a sentence of imprisonment wasrecommended.The s 27 cultural report[18] The s 27 cultural report reflects interviews with Mr Thompson, his wife, hismother and his sister.8 See [32] below.[19] The report traverses and is confirmatory of those matters addressed in the PACreport about Mr Thompson's upbringing. In particular, Mr Thompson's sisterendorses his experiences of moving frequently between their parents' homes duringtheir childhood and having to adjust to different family groups, step-parents and halfsiblings, particularly on their father's side. She also corroborates Mr Thompson'saccount of being groomed and sexually abused as a teenager.[20] The information provided by Mr Thompson and his wife highlights a verygood relationship with his mother and his stepfather, and a more "on and off"relationship with his father, though confirms that the relationship has improved inmore recent years (and prior to Mr Thompson's offending). As in the PAC report,Mr Thompson reported no particular physical abuse during his childhood — other thanthe sexual abuse already described — but described feeling neglected by his fatherwho he perceived to be more focused on his relationships.[21] Mr Thompson self-reported "a bit of anxiety and depression", though no experthealth assessor report was before the Judge at sentencing. Mr Thompson alsoconfirmed that he was now seeking assistance from his doctor, who had referred himto mental health services to "start sorting out my issues". Mr Thompson's motherconfirmed this, describing the fact that Mr Thompson has sought counselling as a"giant step forward". His mother also reported that the move from Rotorua toWhangārei had been very good for Mr Thompson, that he got a settled job, made newgood friends and met his now wife. The report confirms that Mr Thompson is in asettled and good relationship with his wife, that they have one young child together,and that his wife also has an older child from a former relationship with whomMr Thompson has a good relationship.[22] As well as addressing Mr Thompson's upbringing and background, the reportis replete with references to academic reports and journal articles, including academicliterature about Adverse Childhood Experiences (ACEs), said to be linked to many"criminogenic" risks (including substance and alcohol abuse, deprivation, pooreducational attainment and mental health problems). The report writers carried outACE testing of Mr Thompson (based on Mr Thompson's response to 10 questions), inwhich he scored eight out of 10 risk factors. The report records this as reflecting"high exposure to abuse, neglect and household dysfunction". The report writers goon to state:The impact of [Mr Thompson's] ACE score of 8 out of 10 is concerning.Prolonged activation of his toxic stress response systems and disruption ofdeveloping brain architecture is significantly associated with impaired control,executive function and emotion regulation, developmental delays, ADHD,PTSD, poor mental health and criminal behaviour.[23] The report writers then give their opinion about the implications ofMr Thompson's ACE score by reference to further academic articles and reports.The report states that the writers "perceive a linkage" between Mr Thompson'soffending and various risk exposures described as:(a) severe childhood adversities (disclosed by the eight out of 10 ACEscore);(b) disordered parent/child relations, separation anxiety and fear ofabandonment;(c) adolescent exposure to sexual grooming and homosexual abuse; and(d) poor mental health.[24] The report concludes:The writer emphasises theoretical linkages between first, [Mr Thompson's]ACE score of 8/10, including insecure attachments and his exposure to [childsexual abuse] which as outlined prior, can result in the development ofcriminogenic needs that can contribute to sexually abusive behaviour, andsecond, grooming and sexual abuse after 12 years by a father figure in arelationship of dependence.[25] We pause to observe that while the factual content of the s 27 report is helpful,we share the Judge's concern in relation to it (the Judge stating in her sentencing notesthat she did not find the report "a particularly impressive document").9 As notedearlier, the report is heavily footnoted to academic studies and literature, but there isno suggestion the report writers themselves have expertise in the underlying subject9 R v Thompson, above n 2, at [21].matter, or in assessing the linkage between Mr Thompson's background and hisoffending. Further, it seems to us that, putting aside the sexual abuse againstMr Thompson, the report paints a more extreme picture of Mr Thompson's upbringingand family circumstances than is warranted by the information disclosed.Again putting aside the sexual offending, while there were clearly some challenges inMr Thompson's upbringing, these seem to us to be fairly unremarkable. In particular,there is no evidence of the type of socio-economic deprivation and abuse which is alltoo frequently seen in the courts. Rather, common sense suggests that Mr Thompson'sdifficulties up until he was released from prison in 2010 are much more likely to havearisen from the sexual abuse of him as a teenager. It is unfortunate that no experthealth assessor report was available at sentencing to address these matters.10Character references[26] As noted, the Judge was provided with a large number of character referencesabout Mr Thompson, including from his wife, parents, mother-in-law, stepson,half-siblings, friends and past and present employers. All were aware ofMr Thompson's conviction for sexual offending. They paint a picture ofMr Thompson as having turned his life around after his release from prison in 2010,and having a stable and pro-social network around him.The victim impact statements[27] The victim impact statements highlight the psychological harm to thecomplainant from Mr Thompson's offending and in particular, the adverse effects ithad on the complainant's mental health, schooling, social behaviour and relationshipwith his girlfriend. The complainant's mother says that the complainant went fromthe accelerated programme at school to failing his final exams, starting to drinkexcessively and getting into fights, and describes him as now having a "harder edgeto him".10 We proceed on the basis that this may have been because of Mr Thompson's continued denial ofhis offending.[28] The complainant describes feeling disgusted and embarrassed by theoffending, given another man had touched him intimately. He says that these feelingswould often turn into anger which he then took out on those around him. He alsodescribes the effect of the offending on his relationship with his girlfriend, and in thecontext of his peers, feeling like he has to "prove" to them how tough he is, despitethem not knowing of the offending. He says that following Mr Thompson'sconviction, he finally felt some justice and started to accept that he cannot change thepast and that he now needs to move on with life.The District Court sentencing[29] Having recited the facts as she found them at trial, the Judge identified threeaggravating factors of Mr Thompson's offending:(a) First, the effect of Mr Thompson's offending on the complainant, whichthe Judge described as "profound".11 The Judge observed that "[a]t theroot of all of this is that your offending against him was in the form ofan act which ran counter to his own sexuality, because it washomosexual."12(b) Second, what the Judge described as the complainant's "high degree ofvulnerability",13 on the basis that he was in a place where he shouldhave expected to be safe, that he was asleep at the time and because ofthe age difference between him and Mr Thompson.(c) Third, that Mr Thompson's offending was predatory "to an extent atleast".14[30] The Judge also addressed two decisions referred to her by Mr Thompson's thencounsel, R v McNicholl and R v Fisher.15 She viewed Mr Thompson's offending asmore serious than that in both cases, noting that in both, the complainant and offender11 R v Thompson, above n 2, at [9].12 At [11].13 At [16].14 At [13].15 R v McNicholl CA176/02, 29 October 2002; and R v Fisher CA305/91, 18 November 1991.had been friends, the complainants had reported that the offending had not had a greateffect on them, and they had in fact expressed some sympathy for the offender.[31] In terms of a starting point, the Judge stated, "[o]bviously, you fit into the lowerbands for this sort of offending"16 and adopted a starting point of four years'imprisonment.17 This places Mr Thompson's offending near the top of band one or atthe bottom of band two of the unlawful sexual connection bands in the guidelinejudgment of R v AM.18[32] Turning to mitigating personal factors, the Judge accepted that Mr Thompsonhad prospects of rehabilitation in terms of employment and integration back into thecommunity, including because he had a good work record and his employers, bothpresent and past, spoke highly of him. She did not, however, consider Mr Thompsonhad good prospects of addressing the underlying causes of his offending, given he didnot acknowledge that the offending had occurred. The Judge also commented onMr Thompson's history of offending as a result of excessive alcohol consumption,stating that Mr Thompson had "not been honest with the pre-sentence writer in relationto that".19 This was a reference to Mr Thompson's statement to the report writer thathe had all but given up alcohol upon moving to Whangārei in around 2010, which theJudge said was untrue on the basis of his own evidence at trial and also given his lastconviction for driving with excess breath alcohol was in 2013.[33] The Judge said that there could be no discount for good character because ofMr Thompson's criminal record.[34] The Judge then referred to the s 27 cultural report, observing, as noted earlier,that she did not find it "a particularly impressive document".20 She said that from theinformation contained in the report, it appeared that Mr Thompson has always had twoloving parents who have been supportive of him throughout. The Judge describedMr Thompson's education as being uneventful and his work history as largely solid.16 R v Thompson, above n 2, at [14].17 At [20].18 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.19 R v Thompson, above n 2, at [19].20 At [21].[35] The Judge accepted, however, that Mr Thompson had been the subject ofsexual abuse when he was a teenager, observing, "[i]ronically of course you do notaccept that has actually led you to become an abuser yourself."21 However, given theindex offending, the Judge considered she was entitled to take into account that thesexual abuse of Mr Thompson may well have been a factor contributing to hisoffending.[36] Despite what she perceived to be the deficiencies in the cultural report, theJudge said she was prepared to give Mr Thompson a discount for a certain instabilityin his upbringing and for the fact that he had been abused himself. She was alsoprepared to take into account that until his index offending, Mr Thompson had notcommitted any offences over the previous seven or so years and had maintained asteady employment record. To reflect all of these matters, the Judge adopted adiscount of 10 per cent, equivalent to five months' imprisonment. This brought theend sentence to one of three years and seven months' imprisonment. The Judge didnot impose a minimum period of imprisonment.The appealWas the starting point adopted too high?[37] Counsel for Mr Thompson on the appeal, Mr Dooney, submits that thefour-year starting point adopted by the Judge was too high.[38] In terms of the aggravating factors identified by the Judge, Mr Dooney submitsthat to the extent Mr Thompson's conduct was "predatory", this could only have beenat the very low end of that factor. Mr Dooney accepts that the complainant'svulnerability was a relevant aggravating factor, but again says that it falls at the lowerend of that factor in terms of seriousness. In this context, Mr Dooney acknowledgesthat there was an age disparity between the complainant and Mr Thompson, but notesthat it was not as significant as in many cases of sexual offending of this kind, and inparticular, the complainant was not a young child. Mr Dooney also submits the Judgeappears to have taken the views of the complainant into account as a separate21 At [23].aggravating factor, when those are already adequately reflected in the aggravatingfactor of harm to the complainant.[39] Mr Dooney referred us to two further decisions which he says are comparableand which suggest a lower starting point than that adopted by the Judge, Cavaney v R(starting point of three years' imprisonment) and Barber v R (starting point of twoyears and six months' imprisonment).22[40] Taking all these matters into account, Mr Dooney submits that Mr Thompson'soffending falls within band one of R v AM and a starting point of between two and ahalf and three years' imprisonment would have been appropriate.[41] We begin by identifying the aggravating factors of Mr Thompson's offending.[42] We agree with the Judge that an aggravating factor was the harm caused to thecomplainant. While there is no suggestion of physical harm, we accept that thecomplainant suffered not insignificant psychological harm as a result ofMr Thompson's offending. This psychological harm had a clear and tangible effecton the complainant's schooling, social behaviour and relationship with his girlfriend.We consider this aggravating factor to be present to a moderate degree.[43] We also agree with the Judge that complainant was vulnerable, on the basisthat he was in a home in which he would have understood he was safe, he was asleepat the time Mr Thompson made his advances on him, and there was an age disparitybetween him and Mr Thompson. That said, however, the age disparity was not as greatas that seen in many cases of sexual offending of this nature, and the fact thecomplainant was asleep at the time the offending commenced did not make himinherently more vulnerable than any other person in the same position. Accordingly,while we accept vulnerability as an aggravating factor, we consider it present to a milddegree only.22 Cavaney v R [2022] NZHC 1807; and Barber v R [2022] NZHC 1435.[44] We do not agree with the Judge's characterisation of the offending as predatory,even to a limited extent. Rather, the offending appears to have been opportunistic.We therefore do not consider it a separate aggravating factor in terms of R v AM.[45] In R v AM, this Court said that where one or more aggravating factors arepresent to a low or moderate degree, the offending will fall within unlawful sexualconnection band one (two to five years' imprisonment) and a starting point closer tothe top of the band would be required.23 Given there are two aggravating factors toMr Thompson's offending, and while neither are at the serious end of the range, theguidance given in R v AM suggests a starting point closer to the top of band one.[46] Turning to comparable cases, we have considered those referred to the Judgeat sentencing, those to which Mr Dooney referred us on the appeal, as well as othercases we have identified as involving broadly similar offending:(a) R v McNicholl involved offending by the male appellant against afemale friend at a social function.24 The complainant was intoxicatedand went to sleep. She awoke to find that the appellant had removedher trousers and her underpants, had his face near her pubic area andhis finger in her vagina. She got up and left the room. The appellantwas 25 years old at the time of his offending and the complainantwas 22. The decision records that the victim impact statement was"in restrained terms".25 The sentencing Judge adopted a starting pointof three and a half years' imprisonment. The end sentence was upheldon appeal, though it was said to be stern and at the top of the acceptablerange. There was no specific discussion of the starting point.(b) R v Fisher is now quite an old case (1991).26 It involved a maleoffender and a male complainant. At a social function at which boththe appellant and the complainant were present, all were intoxicatedand the complainant retired to bed with his partner, leaving the23 R v AM, above n 18, at [114].24 R v McNicholl, above n 15.25 At [8].26 R v Fisher, above n 15.appellant sleeping in the lounge. The complainant woke to find that theappellant had removed the complainant's shorts and underpants andwas sucking the complainant's penis. The appellant left when thecomplainant woke. The sentencing Judge adopted an end sentence of17 months' imprisonment. On appeal, this Court observed that thecomplainant and appellant were well known to each other and theircomparative ages did not raise any question of exploitation of a youngerperson. It also appears that the complainant had viewed the effect ofthe assaults on him as minimal. In that context, this Court describedthe offending as "very much at the lower end of the scale".27 There wasno particular discussion of the starting point adopted, but having takeninto account the personal factors of the appellant, the sentence wasquashed and a sentence of six months' imprisonment imposed.(c) In Cavaney v R, the complainant was at the appellant's house for abirthday celebration, which involved alcohol as well as cannabis.28Later in the evening the complainant went to bed and was joined by herpartner. The complainant awoke to find that the appellant had enteredthe bedroom, pulled the blanket off her, moved her underwear aside andwas digitally penetrating her vagina. The appellant stopped touchingthe complainant and left the bedroom. In the District Court, the Judgeadopted a starting point of three years' imprisonment. On appeal to theHigh Court, there was no real challenge to or discussion of the startingpoint adopted, the focus being on whether an additional discount forremorse should have been applied.(d) In Barber v R, the complainant, her family and others were at theappellant's home for a social occasion.29 Alcohol was consumed andthe complainant became intoxicated and was taken to a bed by herhusband around midnight. She woke in the early hours of the morningto find the appellant sexually violating her with a finger or fingers.27 At 5.28 Cavaney v R, above n 21.29 Barber v R, above n 21.The sentencing Judge adopted a starting point of two years and sixmonths' imprisonment. Again, however, the focus of the appeal wasnot the starting point adopted but whether the Judge had erred in thediscounts applied.(e) Hawkins v R involved charges of sexual violation by unlawful sexualconnection and indecent assault.30 The male appellant and the malecomplainant had been friends since childhood. They spent the eveningsocialising and then attended a party together. The complainant wastoo intoxicated to drive home and fell asleep in a bedroom.The appellant entered the bedroom, lowered the complainant's pantsand underwear and started masturbating the complainant's penis.The complainant awoke and told him to stop, upon which the appellantkissed the complainant on the cheek and side of the mouth, and thenbegan to suck on the complainant's penis and placed his fingers into thecomplainant's anus. The District Court Judge adopted a starting pointof four years' imprisonment. This was upheld on appeal.(f) Finally, R v Smith involved charges of sexual offending on more thanone occasion.31 The male complainant was a young friend of theappellant's daughter, employed by him on a casual basis, through whichthe complainant saw the appellant as a "father figure".32 The chargesof sexual violation, indecent assault (x 1) and stupefying arose from anincident where the complainant came to the appellant's house to pickup some personal belongings. The appellant offered the complainantalcohol and two pills which he said were antidepressants.After consuming the second pill, the complainant felt dizzy and haddifficulty focusing so settled down to sleep. The appellant asked thecomplainant to lift his shirt and began massaging him. He then undidthe complainant's belt and removed the complainant's pants andboxers, licked the complainant's nipples, masturbated him and30 Hawkins v R [2022] NZHC 283.31 R v Smith HC Wellington CRI-2007-485-44, 22 June 2007.32 Above at [2].performed oral sex on him. On appeal, the High Court considered thatbut for the stupefying, the offending would fall in the middle of bandone from R v AM, giving rise to a three and a half year starting point.33In totality, and taking into account the stupefying and other charges, thestarting point was increased to five and a half years.[47] We put aside Fisher, which is now dated and somewhat of an outlier. We donot derive any particular assistance from McNicholl, Cavaney or Barber, as there wasno appellate consideration of the starting point adopted in each of those cases. Smith issomewhat different, given the stupefying charge. Hawkins involved similar offending,though more serious than Mr Thompson's and so provides some support for a lowerstarting point. Standing back, and reflecting the guidance from R v AM and the limitedassistance we have obtained from the authorities discussed above, we consider that astarting point of three years and six months' imprisonment would have beenappropriate.Were the discounts inadequate?[48] The overall thrust of Mr Dooney's submissions on this ground of appeal is thata 10 per cent discount for the combined factors of Mr Thompson's background, hisgood character, prospects of rehabilitation and time spent on bail was inadequate.Mr Dooney submits that based on the personal trauma evidenced by the cultural report,a discount of 15 to 20 per cent for these matters alone would have been warranted.He further submits that a five per cent discount for good character is available, notingthat Mr Thompson's last offending was in 2012, and that his good character since thenis well demonstrated by the s 27 report and the character references put before theJudge. Mr Dooney also emphasises that Mr Thompson had been on bail prior tosentencing (with a "non-24 hour curfew"), and that the Judge's reference in hersentencing notes to Mr Thompson "not being honest" about his alcohol consumptionwas incorrect, given the PAC report expressly recorded that Mr Thompson didcontinue to drink alcohol after he had moved to Whangārei, though only around twiceper month.33 We note that the decision in R v Smith predates the introduction of the unlawful sexual connectionbands in R v AM.[49] We have already addressed why we do not find aspects of the s 27 culturalreport helpful, including that it overstates the childhood trauma said to have beensuffered by Mr Thompson.[50] As this Court observed in Carr v R, where there is "a credible account ofmatters which might be considered to have impaired choice and diminished moralculpability", and which establishes a causative contribution to offending, "it must havean effect on the sentencing outcome".34 In this case, however, and putting aside thesexual abuse of Mr Thompson as a teenager, we do not discern any credible accountof matters which might suggest linkage between Mr Thompson's family backgroundand upbringing and his later offending.[51] It is not in dispute that Mr Thompson was sexually abused as a young teenagerand that that abuse appears to have extended over a fairly lengthy period of time. It isunfortunate that more detailed information about the abuse, or appropriate expertadvice on the potential linkage between it and Mr Thompson's own sexual offending,was not before the District Court. Despite the absence of expert advice, however, weagree with the Judge that the sexual abuse of Mr Thompson is likely to have been acausative factor of his own offending. Sexual offending by an adult male againstteenage boys is unusual, and it seems an unlikely coincidence that Mr Thompson wassexually offended against when he was a teenager and he has in turn sexually offendedagainst a teenage male. In this context, we do not accept the Crown's submission thatthis linkage cannot be inferred given Mr Thompson's denial of his offending.The point is that the jury found that the offending did occur, despite Mr Thompson'sdenial. For these reasons, we think the 10 per cent discount adopted by the Judge forall mitigating factors is appropriate to reflect the contributing effect the sexual abuseof Mr Thompson is likely to have had on his own offending.[52] As to further discounts, we disagree with the Judge's conclusion thatMr Thompson's earlier offending precludes a discount for good character. Followinghis release from prison in 2010, Mr Thompson demonstrated insight into the fact thathe needed to take steps to turn his life around, including removing himself from the34 Carr v R [2020] NZCA 357 at [65].difficult environment in which he found himself in Rotorua. Mr Thompson did notoffend again for nearly eight years and appears to have led a stable and pro-social lifein the interim. It is also apparent from the materials before us that while Mr Thompsonhas not accepted his present offending, he has nevertheless opened up to his wife andfamily about the earlier sexual offending against him, and has taken some, albeit early,steps to seek help. We therefore do not rule out the prospect of rehabilitation of theunderlying causes of his offending despite his present denial of it. We therefore adopta further five per cent discount to reflect Mr Thompson's more recent good characterand some prospect of rehabilitation.[53] As to time spent on bail, no details have been put before us aboutMr Thompson's remand, including his bail conditions. What is clear however, is thathe was not on electronically monitored bail, nor was he subject to a 24-hour curfew.We therefore do not discern any error in the Judge not allowing any additional discountfor these matters.[54] Applying the discounts we consider appropriate, which total 15 per cent, to thestarting point of three years and six months' imprisonment leads to an end sentence oftwo years and 11 months' imprisonment. This precludes consideration of a sentenceof home detention.Result[55] The appeal against sentence is allowed.[56] The sentence of three years and seven months' imprisonment is quashed andsubstituted with a sentence of two years and 11 months' imprisonment.Solicitors:Crown Solicitor, Whangārei for Respondent