TROON v R [2019] NZCA 265

TROON v R [2019] NZCA 265 [27 June 2019]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA609/2018[2019] NZCA 265BETWEEN JEFFREY TROONAppellantAND THE QUEENRespondentCA646/2018BETWEEN LEWIS ERU CRAIGAppellantAND THE QUEENRespondentCA662/2018BETWEEN TERI TE WAIMARAMA THOMPSONAppellantAND THE QUEENRespondentHearing: 9 May 2019Court: Courtney, Lang and Whata JJCounsel: C J Tennet and S J Fraser for Mr TroonC J Nicholls for Mr CraigE A Hall for Mr ThompsonM J Lillico for RespondentJudgment: 27 June 2019 at 3.30 pmJUDGMENT OF THE COURTThe appeals against sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Mr Troon, Mr Thompson and Mr Craig were charged with the abduction andsexual violation of a 17 year old complainant. During the course of their trialthe Crown obtained leave from Clark J, the trial Judge, to amend the charges to chargesof indecent assault.1 The defendants then entered guilty pleas to those charges.This brought their trial to an end.[2] On 5 October 2018, Clark J sentenced all three appellants to terms ofimprisonment.2 Mr Troon was sentenced to four years and two months'imprisonment,3 Mr Thompson was sentenced to four years and six months'imprisonment,4 and Mr Craig was sentenced to two years and seven months'imprisonment.5 There were two other defendants who also pleaded guilty —Mr Whitinui and Mr Holland — but they have not appealed their sentences.[3] The appellants advance appeals against sentence on the ground that a series oferrors resulted in the Judge imposing sentences that were both wrong in principle andmanifestly excessive.Background[4] The appellants were sentenced in accordance with an agreed summary of factsthat the Crown prepared when it obtained leave to amend the charges. This records1 R v Thompson HC Wellington CRI-2016-091-2957, 30 August 2018 (Ruling No 4 of Clark J).2 R v Thompson [2018] NZHC 2608 [Sentencing Notes].3 At [103].4 At [53].5 At [75].that the complainant did not know any of the defendants before the incident givingrise to the charges.[5] On the evening of 28 October 2016, the complainant was driving her vehiclein Paraparaumu when she noticed a white utility motor vehicle following her.She could see that the occupants of the vehicle were making hand gestures towardsher.[6] The complainant drove to her address in Paraparaumu with the other vehiclefollowing behind. When she got out of her vehicle, two of the occupants of the whiteutility spoke to her. She then got into the other vehicle and sat on Mr Craig's knee inthe front passenger seat of the vehicle. Mr Troon and Mr Thompson were sitting inthe rear seat along with another man, Mr Whitinui. The vehicle was driven by a fifthman, Mr Holland.[7] The vehicle drove to Mr Troon's address. On arrival Mr Troon gestured forthe complainant to follow him into his bedroom. He closed the door and pushed thecomplainant onto her knees. He then held her head with one hand and put his penisinto her mouth without her consent. He also partially pulled her pants down.[8] At this point some of the other occupants of the vehicle entered the room.One of these men smacked the complainant on her buttocks. Mr Troon then toldthe others to get out on the basis that it was "his turn". The men then left the room.[9] The summary records that Mr Troon sat on the bed and made the complainantcontinue to perform oral sex on him. The other men then came back into the roomand one of them removed the complainant's top. The men also slappedthe complainant on the buttocks again .[10] At this point Mr Craig placed his penis in the complainant's mouth without herconsent. Mr Thompson did the same, before taking a beer bottle and inserting it intothe complainant's vagina. As this occurred the complainant was asking the men tostop.[11] The summary records that Mr Troon then picked up a home-made tool similarto a screwdriver. As he was preparing to insert this object in the complainant's vagina,to which the complaint was saying no, then one of the other men objected and hestopped. This incident was followed by Mr Whitinui touching the complainant'sgenitalia. Mr Troon then inserted his penis into her vagina. At this pointthe complainant told Mr Troon she needed to go home. He said "let's finish" andwould not let her go.[12] When the complainant was eventually allowed to leave, she was driven awayfrom Mr Troon's address in the white utility motor vehicle accompanied by Mr Craigand Mr Holland. After they dropped her off in a suburban street the complainant wasable to telephone the manager of the boarding house where she was staying. He thentook her home.[13] When the police interviewed Mr Craig, he denied the allegations and declinedto make a statement. Mr Thompson also declined to make a statement. Mr Trooncontended that any sexual contact had been consensual.The sentences[14] Mr Troon ultimately faced two charges of indecent assault. These related tothe incidents in which he had placed his penis in the complainant's mouth and thensubsequently inserted his penis in her vagina.6 The Judge took a starting point offive years imprisonment to reflect Mr Troon's culpability on both charges.7 She thendeducted four months to reflect rehabilitative efforts and a further six months, or justover ten per cent, to reflect the guilty pleas.8 This produced the end sentence of fouryears and two months' imprisonment.9[15] Mr Thompson also faced two charges of indecent assault. These related to theincidents in which he had inserted a beer bottle into the complainant's vagina and theninserted his penis into her mouth.10 The Judge took a starting point of five years6 Sentencing Notes, above n 2, at [89].7 At [94].8 At [99] and [102].9 At [103].10 At [35].imprisonment on both charges and then deducted six months, or ten per cent, to reflectthe guilty pleas.11 This produced the end sentence of four years six monthsimprisonment.12[16] Mr Craig faced a single charge of indecent assault resulting from the fact thathe had inserted his penis into the complainant's mouth without her consent.13The Judge took a starting point on this charge of three years imprisonment.14She applied a reduction of one month to reflect the fact that Mr Craig had been subjectto reasonably restrictive bail conditions for approximately four months.15 She thenapplied a further discount of four months, or just over ten per cent, to reflect the guiltyplea.16 This produced the end sentence of two years seven months imprisonment.17The events that led to the amendment of the charges[17] In order to understand several of the arguments advanced on appeal it isnecessary to set out the events that led to the Judge granting the Crown leave to reducethe charges from abduction and sexual violation to indecent assault.[18] The trial commenced on 20 August 2018. At that stage the defendants faceda total of 65 charges. These included sexual violation by rape, abduction with intentto have sexual connection, and sexual violation by unlawful sexual connection.18[19] The complainant began giving evidence on Wednesday 22 August 2018.Her evidence did not conclude until shortly before the luncheon adjournment onMonday 27 August 2018. At that point the Judge agreed to a request by counsel for alonger luncheon adjournment than would usually be the case.[20] At approximately 3.20 pm counsel advised the Judge they were engaged innegotiations designed to resolve the case. This would involve the preparation of a new11 At [40] and [52].12 At [53].13 At [55].14 At [64].15 At [72].16 At [73].17 At [75].18 Crimes Act 1961, ss 128, 128B and 208.summary of facts and an amendment of the existing Crown Charge Notice to substitutecharges of indecent assault for the existing charges of abduction and sexual violation.Counsel also asked the Judge to provide a sentence indication notwithstanding the factthat the trial was already well underway. Ms Carter, counsel for the Crown, initiallyproposed that counsel would make submissions in relation to the sentence indicationlater that afternoon.[21] The Judge eventually agreed to provide a sentence indication but not untilthe following morning at 9.30 am. The jury was then sent away until 11 am the nextday. Later the same afternoon the Judge issued two minutes to counsel. In the firstminute she indicated she was no longer prepared to give a sentence indication becauses 61 of the Criminal Procedure Act 2011 only permits a sentence indication to be givenat the request of the defendant made prior to the commencement of the trial. Inthe second minute the Judge advised counsel that it should not "be simply assumed"that she would grant leave to amend the charges in the manner foreshadowed bythe Crown earlier that afternoon.[22] Counsel saw the Judge in the absence of the jury the following morning.Ms Carter then made lengthy submissions in support of the Crown's application toamend the charges. The overall tenor of these was to the effect that resolution ofthe proceeding by amendment of the charges and entry of guilty pleas was in boththe public interest and the best interests of the complainant even though she hadalready completed her evidence and was about to travel overseas. Counsel andthe Judge knew the complainant had a very troubled past and was presently at risk ofcommitting suicide. Ms Carter told the Judge she had discussed the proposal withthe complainant and the complainant had indicated that the best outcome for her wasvalidation of her allegations. The Crown considered this could be achieved throughguilty pleas entered to charges of indecent assault even though this would obviouslyresult in the defendants receiving lesser sentences than would be the case if they werefound guilty of the existing charges.[23] Ms Carter acknowledged there was evidence upon which the jury could findthe defendants guilty of the existing charges but also conceded the Crown faced somehurdles in proving those charges. In addition, Ms Carter advised the Judge she haddiscussed the proposal with the Crown Solicitor at Wellington and Ms Carterconsidered it was compatible with the requirements of the Crown ProsecutionGuidelines.19 Ms Carter described the steps the Crown had taken thus far as being"a very considered approach".[24] Before Ms Carter went on to address the issue of sentence the Judge outlinedconcerns she held regarding the Crown's proposal. She acknowledged the benefit ofthe proposal from the perspective of the complainant but pointed out that the interestsof the complainant were not the only factor to be taken into account. The Judgeconsidered the public interest was engaged because the defendants were now inthe charge of the jury, and the jury had heard the complainant give evidence about actsthat amounted to sexual violation. The Judge pointed out that the integrity ofthe criminal justice process from the perspective of both the jury and the public atlarge needed to be considered. The fact that the summary of facts was likely to differfrom the evidence the jury had already heard was significant in this context.[25] The transcript records that the following exchanges then occurred:THE COURT TO MS CARTER:A. So in the main [the summary of facts] does accord with whatthe complainant said. But the real issue is that in essence it is sexualviolation as opposed to indecent assault. But of course, indecentassault is effectively a lessor example of that same conduct. So, itdoes, it is an indecent assault. It just also, it is a sexual violation, andin response to your comments about the jury, of course, the jury haveonly heard from the complainant, so they do not know what otherevidence what other evidence is there, which is going to come intothe balance, ultimately, when they have to decide their verdicts. So, inessence the, as I said, the validation will be therefore the complainant.I accept that that is not the only consideration. There is the publicinterest, and the public is whether the public need to be protected fromthese particular defendants because a maximum penalty as for, as isfor the indecent assault is not as high for the sexual violation, and asI have indicated these defendants do not have previous for this type ofbehaviour and what the Crown would be submitting for Thompson,the sentence would be a sentence of imprisonment in any event. Oneaccepts he has been in custody for quite a significant period of timenow. So that may well offset, and for the other defendants then the,for Mr Troon and Mr Craig, and for Mr Whitinui, a sentence of19 Crown Law Office Solicitor-General's Prosecution Guidelines (1 July 2013) [ProsecutionGuidelines].electronically monitored sentence, so there is still a form of detentionalbeit not in custody.Q. Is it appropriate for the Crown to be addressing what positionthe Crown might take on sentencing at this stage?A. I do not think there is an issue with everybody knowing, it does notbind the Court. The Court, it is the Court that makes that decision.But I am just explaining to Your Honour that even with the factors,the public interest factors, that has been considered and the Crownwould be submitting that the sentence is imposed whilst not beingincarcerated in a prison would involve the defendants being subjectto electronically monitoring. So, there would be some protection forthe public in that way, and as I say these are not defendants who havegot previous history for this type of offending. So, I am just reallyaddressing the public interest aspect of the resolution that is beingsuggested, and it is not unusual that a case may well not end upproceeding fully to the jury for them to return verdicts, as YourHonour will know as trials progress. So, there is nothing unusualabout that. So, I hope those two matters address the concerns thatYour Honour had. If there is anything else that I can address at thisstage, then obviously I will.(Emphasis added).[26] The Judge then reiterated that the public interest also lay in seeing jury trialsprogress with a sense of integrity, but she acknowledged the proposal may notcompromise that principle. At that point the Judge called on Mr Antunovic, counselrepresenting Mr Craig at the trial. The following exchange then occurred:Mr Antunovic: Morning, Ma'am. Not a great deal that I need or want to sayunless I can assist you, but except that since late yesterdayafter there has been a lot of discussion and a lot of carefulconsideration given, I am sure, by each of the defendants intheir own position. Can I say to you and Mr Craig hasa desire to try and resolve this matter if it is possible and heis very interested in the proposed resolution.But Your Honour will understand he is 27 now. There arerisks for him in proceeding, obviously. There are supposedperceived risks for him in resolving it, and what would assisthim, Ma'am, is if you were able to give some kind ofindication that you might adopt, be prepared to adoptthe Crowns position on sentencing, which for him, asI understand it is that there would be a starting point oftwo years' imprisonment should he plead guilty to thecharge of indecent assault, that a discount of around 15%then for his plea of guilty, which might then, ordinarily,result in the imposition of a sentence of 10 months' homedetention if the Court considered that that in the end was theappropriate way to deal with the matter, and if he had someassurance that that could well be the ultimate outcome, thatI think he would be prepared to resolve matters today,Your Honour.The Judge: Well I cannot give an assurance that it would be, but if youmean what you say, Mr Antunovic, that an assurance issought that it could be.Mr Antunovic: Mmm.The Judge: Did you say, "Could", not, "Would."Mr Antunovic: It is probably –TheJudge: There is a big difference isn't there?Mr Antunovic: Yes, there is. Well, it is –Th Judge. One is a sentence indication which I have, I was going toask how is this different from a submission and a hearing ona sentence indication which I have said I have not going togive because I do not have the power to do that. But howcould I say that it could not be the ultimate outcome.I cannot say that. It could be. I would always listen ascarefully to Crown submissions as I would to any defendantsubmissions.Mr Antunovic: Yes, I am –The Judge: And here, where they aligned that is something further thatI would take into serious account.Mr Antunovic: Yes, thank you, Your Honour. Well that may assist.The Judge: Is it still an all or nothing outcome? Well, I suppose I shouldhave directed that at the Crown, that question.Mr Antunovic: I understand so, Your Honour.The Judge: All right. Thank you.Mr Antunovic: Yes, I understand, that that is so, and that the, all ofthe defendants, and I hope I am not speaking out of turn, arevery keen to resolve this. But you will understand that they,there is an interest in their part in this trial as well, fairnessfor not only the complainant in, and not only a recognitionof the public interest, but also the interests of the individualswho have most at stake here, which are those five men inthe dock, and that, I suppose, we are all just trying to do ourbest for our clients.The Judge: Yes.Mr Antunovic: To get them as much certainty –The Judge: Of course.Mr Antunovic: – as possible, Your Honour.The Judge: And can I, I do not want to foreclose submissions, but can Iindicate to all counsel that my response, so that it isnecessary, counsel do not feel it is necessary to makethe identical submission, and ask the identical question, thatwould be the case for all, well I cannot say that, sorry.When you say that this could be the ultimate outcome.Mr Antunovic: It would be nice –The Judge: I cannot foreclose any ultimate outcome including theone that you have postulated for Mr Craig. That would beto close my mind at this early stage.Mr Antunovic: Of course, yes.The Judge: But I cannot give a sentence indication.Mr Antunovic: Thank you, Ma'am.The Judge: Thank you, Mr Antunovic.Mr Antunovic : I do not think I can assist any further.The Judge: Thank you.[27] Thereafter the Judge heard submissions from the Crown regarding other casesin which charges had been downgraded after the trial had commenced.During this discussion the Judge asked Ms Carter to address the principle thatthe charges needed "to adequately reflect the essential criminality of the conduct andprovide sufficient scope for sentencing to reflect that criminality."20 Ms Carter advisedthe Judge that she considered she had already addressed this issue. She said the Crownaccepted that the facts in the new summary "would amount to sexual violation", butsubmitted the public interest was nevertheless served by lesser charges.[28] At the end of this discussion the Judge heard further submissions fromMr Antunovic and Ms Ord, representing Mr Whitinui, regarding other examples ofcases in which a lesser charge had been substituted during the course of a trial.The Judge then asked Ms Carter whether the fact that the charges had been amendedprimarily as a result of the Crown's concerns about the wellbeing of the complainantwould be referred to in public documents such as sentencing notes. The Judge said itwas very important from her perspective to have the proposed outcome in a form that20 At 8.1.could amount to a public document. Ms Carter said the Crown would have no issuewith this information being included in any sentencing decision to providean understanding of why the Judge had agreed to the Crown's proposal.[29] At that point the discussion moved to the mechanics of implementingthe proposal, including the preparation of amended charges and the entry of guiltypleas to those charges. At the end of this discussion the Judge advised counsel thatshe would grant the Crown leave to amend the charges. She then adjourned to enablethe Crown an opportunity to prepare the amended charges and to give defence counselthe opportunity to discuss the position with their clients. The Judge then took a 15minute adjournment at 11.18 am.[30] When the in chambers legal discussions resumed at 12.03 pm Mr Antunovicadvised the Judge that it seemed there was a unanimous resolution. He also suggestedthat the defendants be arraigned in the absence of the jury so that no problem wouldarise if any defendant changed his mind and elected not to enter guilty pleas to thenew charges. Ms Carter then presented the Judge and defence counsel with the newCrown Charge Notice and the Judge granted leave for the charges to be amendedaccordingly. A discussion then ensued as to whether the jury should be present orwhether they should be discharged prior to the pleas being entered. The Judgeultimately agreed that pleas should be entered in the absence of the jury, after whichthe jury would return to the courtroom where they would be discharged after beingtold what had occurred.[31] The defendants were then arraigned on the new charges and each entered guiltypleas to them.[32] We set this narrative out in some detail not only because it relates to some ofthe arguments advanced on appeal but also to highlight the difficulties that can arisewhere counsel seek to resolve criminal charges in this way during the course of a trial.In particular, it highlights the pressure such a process places on counsel and Judgewhen all are conscious that a jury is waiting to return to the courtroom.Issues arising out of the process followed in this case[33] Several arguments were addressed to us arising out of the process that led tothe amendment of the charges and the entry of guilty pleas to the new charges.Mr Nicholls submitted on Mr Craig's behalf that the Judge was wrong to decline togive a sentence indication when asked to do so at the conclusion of the complainant'sevidence. We reject that submission because it flies in the face of the plain wordingof s 61(1) of the Criminal Procedure Act. Section 61(1) only permits a formal sentenceindication to be given where that is requested by a defendant prior tothe commencement of the trial.[34] Ms Hall pointed out on Mr Thompson's behalf that this Court has notcategorically excluded the possibility of an informal sentence indication being givenduring the course of the trial. In Whichman v R, the appellant and counsel assistingthe Court had argued that such a process would be a nullity because it infringeds 61(1).21 Counsel for the Crown submitted that the informal nature of a sentenceindication did not undermine the validity of guilty pleas that followed. In that contextthis Court observed:[47] It is unnecessary for us to decide the point, although we think there issome force in [the Crown's] submission. We would not want to be taken bythis judgment to exclude altogether the possibility of an informal sentenceindication during trial. But if that were to occur, the judge will need to be surethat the sentence indicated and its practical implications as to duration andeffect are spelled out and understood, and that there is adequate time forcareful advice and consideration. That may well be difficult to achieve in apart-heard trial, particularly where witnesses are waiting to be heard or a juryis waiting to return. If circumstances preclude this standard being met, as wasthe case here, the request for an indication should be declined. It will then bethe defendant's choice whether to plead guilty at that point, withoutan indication.[35] These observations are obviously apposite to the present case. Any informalsentence indication given during this trial would necessarily have been undertakenwith a minimum of preparation and whilst the jury was waiting to return.Furthermore, counsel and the defendants would not have had an adequate opportunityto consider the indication. For these reasons we do not consider the Judge can becriticised for declining to give a sentence indication during the trial.21 Whichman v R [2018] NZCA 519.[36] The most significant issue that now arises, however, is that all three appellantscontend they were taken by surprise at sentencing when the Judge adopted startingpoints of five years' imprisonment in the case of Messrs Troon and Thompson andthree years' imprisonment in the case of Mr Craig. They say the Judge must haveknown when the discussions took place on 28 August 2018 that she would be likely toadopt starting points at around those levels. They argue the Judge should have advisedthem of her intentions at that time so they could have considered their positions morecarefully. In particular, Mr Troon and Mr Craig contend that the Judge ought to havetold them home detention was not likely to be an available sentencing option beforethey entered their guilty pleas. Had they known this was the case they could havecontinued to defend the existing charges. Mr Tennet goes so far as to suggest onTroon's behalf that a miscarriage of justice has occurred and this Court must now dowhatever it takes to remedy it.[37] We do not accept this submission for several reasons. First, we consider ithighly unlikely that the Judge would have formed any views at all by 28 August 2018regarding the appropriate starting points for the sentences to be imposed onthe amended charges. She did not receive the amended summary of facts until shewas discussing the proposed amendment of charges with counsel for the Crown, andthe issue of the appropriate starting points for sentences to be imposed on the newcharges was never raised by any counsel.[38] More importantly, we consider the Judge made her position clear inthe highlighted passages of the trial transcript set out above.22 She was not preparedto provide a sentence indication and she was not prepared to say she would imposeend sentences of the type suggested by the Crown. She explicitly said that to do sowould mean she had closed her mind regarding the issue of sentence at an early stage.We consider this was entirely appropriate given the fact that the Judge had not receivedsubmissions from either the Crown or the defence, and had not had any opportunity toundertake the factual and legal analysis required in an orthodox sentencing.22 At paragraph [26] of this judgment.[39] We consider the problems in the present case have arisen because ofthe enthusiasm with which the Crown promoted the amendment of charges and madeknown its likely stance regarding sentence. The Crown appears to have taken thatapproach largely because it believed it would be in the best interests ofthe complainant. Although the Judge said she would take into account areas in whichthe defence and Crown were aligned in relation to sentence, she stopped well short ofendorsing the Crown's position.[40] We therefore do not consider the process that led to the amendment ofthe charges led to a miscarriage of justice. Mr Thompson could not have been underany illusion as to the likely end sentence he would receive because the Crown hadmade it plain from the outset that he would be required to serve a sentence ofimprisonment. We also consider this is what Mr Antunovic was referring to inthe passage set out above at [26] when he told the Judge there were "perceived risks"in Mr Craig accepting the resolution suggested by the Crown. Finally, it is noteworthythat on 28 August 2018 Mr Troon signed a confirmation of his instructions to hiscounsel after he had entered his guilty pleas to the amended charges the previous day.In this he stated "I understand Judge made no indication for end sentence which leavesopen imprisonment or home detention."Were the sentences manifestly excessive?The starting pointsMr Thompson[41] In fixing the starting point for the sentences to be imposed on Mr Thompsonthe Judge observed that several features of his offending applied to allthe defendants:23[39] The features that aggravate the offending are the same for eachdefendant. You carry some responsibility for the harm to S which shedescribed in her victim impact statement, although of course I cannot attributeto your offending particular identifiable harm. The difference in age isa relevant factor. She was 17. You were 26. And you acted as a group ofmultiple offenders. Ms Hall submitted "group or multiple sex is not23 Sentencing Notes, above n 2.uncommon with young people". In my view the submission overlooksthe non-consensual aspect of this occasion.[42] The Crown had suggested a starting point for Mr Thompson of three years andsix months' imprisonment.24 The Judge disagreed. She considered a five year startingpoint, being approximately two-thirds of the maximum penalty, recognisedthe statutory principle that a sentence near to the maximum should be imposed foroffending that falls within the most serious of cases for which the penalty isprescribed.25[43] We largely agree with the Judge's assessment of the aggravating features ofMr Thompson's offending although we do not consider the disparity between the agesof the defendants and that of the complainant was of particular significance. All threeappellants were either 25 or 26 years of age at the time of the offending but there doesnot appear to have been any suggestion they were aware the complainant was only17 years of age and still at school. We do not consider it likely, however, that the Judgegave this issue a great deal of weight in fixing the starting point for any ofthe defendants.[44] There is no guideline judgment of this Court for the offence of indecent assaultfor the obvious reason that it can be committed in an infinite variety of ways.The starting points adopted in other cases will therefore seldom provide assistance infixing the starting point on this type of charge. The aggravating and mitigating factorsrelevant to the offence will therefore usually provide the greatest assistance becausethey inform the overall culpability of the offending having regard to the maximumsentence for the charge.[45] The most significant aggravating factors of Mr Thompson's offending werethat he committed two serious indecent assaults that involved the penetration ofthe complainant's mouth vagina without her consent. This occurred afterthe complainant had effectively been held against her will by a group of young males.Mr Thompson was also the person who initiated the offending when he ledthe complainant to his bedroom immediately after the group arrived at his address.24 At [40].25 Sentencing Act 2002, s 8(d).[46] We consider each of the two indecent assaults fell within the most serious interms of culpability for offending of this type. As the Judge observed, it is difficult toimagine indecent assaults more serious than non-consensual penetration ofthe complainant's vagina with a beer bottle and penetration of her mouth with a penis.For that reason s 8(c) of the Sentencing Act 2002 was engaged, and the Judge wasrequired to impose the maximum penalty for the offence unless the circumstances ofthe offender rendered that inappropriate. The maximum sentence for each charge wasseven years imprisonment.[47] We therefore consider a starting point of at least seven years imprisonmentwould have been appropriate having regard to the nature of the offending and inthe absence of circumstances relevant to Mr Thompson that made such a sentenceinappropriate. The overall starting point of five years imprisonment was below thatwhich should have been selected.Mr Troon[48] Like Mr Thompson, Mr Troon pleaded guilty to two charges of indecentassault. One involved non-consensual penetration of the complainant's vagina by hispenis and the other involved the non-consensual insertion of his penis in thecomplainant's mouth.26[49] It will be obvious from what we have already said that we consider a startingpoint of five years imprisonment for this offending to be lenient, and that a higherstarting point was appropriate.Mr Craig[50] Mr Craig pleaded guilty to a single charge of indecent assault arising out ofthe fact that he inserted his penis in the complainant's mouth without her consent.27The Crown contended a starting point of two to two and a half years imprisonment26 Sentencing Notes, above n 2, at [89].27 At [55].was appropriate for this charge but the Judge adopted a starting point of three yearsimprisonment.28[51] The aggravating features of Mr Craig's offending were largely the same asthose of Mr Thompson and Mr Troon, but he only faced one charge whereas they facedtwo. Our earlier comments relating to the application of s 8(c) apply.Aggravating and Mitigating factorsMr Thompson[52] Mr Thompson was 26 years of age at the time of the offending. The Judgenoted that he had 38 previous convictions and had served 17 sentences ofimprisonment.29 He also showed lack of remorse for the present offending. The Judgeconsidered these factors would ordinarily justify an uplift in the starting point, butshe offset them against issues raised in a comprehensive report from a psychologistthat had been made available prior to sentencing.30[53] The report reveals that Mr Thompson has suffered for many years fromundiagnosed cognitive issues.31 The report describes his IQ, working memory andperceptual reasoning described as being borderline, and he is easily led by others. Heis also within the low average range for adaptive functioning. This measures whetheran individual displays the functional skills necessary for daily living withoutassistance. His verbal comprehension also fell on the cusp the extremely low range.This factor resulted in him receiving communications assistance at the trial. Inaddition, Mr Thompson's heavy use of alcohol and substances may have exacerbatedpre-existing central nervous system vulnerabilities, some of which may now have beenreversed by the period of abstinence forced on him by the period he has spent incustody.32 Finally, Mr Thompson is at risk of foetal alcohol syndrome disorder andneurodevelopmental disorder.3328 At [55]–[64].29 At [48].30 At [48].31 At [46(a)].32 At [46(b)].33 At [43].[54] The Judge accepted the Crown's submission that the report did not concludethese issues may have contributed to the present offending.34 As a result, the Judgeconcluded she could not reduce the sentence to reflect the issues identified inthe report. Instead she elected not to apply an uplift to reflect the aggravating factorsshe identified.[55] We accept Ms Hall's submission that lack of remorse is not an aggravatingfactor. Rather, it is the absence of a mitigating factor. We also accept Ms Hall'ssubmission that, although Mr Thompson has numerous previous convictions, the vastmajority relate to offending that has no relevance for present purposes. He has noprevious convictions for sexual offending. Furthermore, Mr Thompson's previousconvictions for offending involving violence or threats of violence appear to have beensustained in a family violence context. Offending of that type is obviously serious butthe present offending is very different in nature. This means we accept Ms Hall'ssubmission that the principles justifying an uplift for previous convictions were notengaged in Mr Thompson's case.[56] The Judge was clearly concerned to provide discrete recognition for the issuesMr Thompson faces, however, and we consider she was correct to do so.Although those issues may not have contributed directly to the present offending theyare likely to cause difficulties for him in serving a sentence of imprisonment. Weconsider that in the ordinary course of events a discount of around ten per cent, or sixmonths, would have been justified to recognise this mitigating factor.[57] The other mitigating factor available to all defendants was that relating tothe immediate entry of guilty pleas to the amended charges. Counsel forthe defendants had contended this factor warranted the maximum available discountof 25 per cent. The Judge did not accept this was appropriate for the followingreasons:35[28] The credit to be given for a timely guilty plea reflects the benefits tothe justice system and to the participants, including of course complainantswho are spared having to give evidence. I accept guilty pleas were enteredquickly following discussions with the Crown about amendment and34 At [48].35 Sentencing Notes, above n 2.withdrawal of charges. In Johnson v R a guilty plea was entered onthe morning of the trial in response to a lesser charge. The Court of Appealwas satisfied a 10 per cent discount was appropriate. The victim would havealready suffered the anxiety attendant on expecting to give evidence, the juryhad been empanelled and the Court had already allocated significant resourcesto dealing with the matter.[29] So too in this case, S not only endured the anxiety of anticipating herreturn from overseas for the purpose of giving evidence but wascross-examined by five counsel over a three-and-a-half day period.[30] But I do accept there was nevertheless a benefit to S from the guiltypleas. It is a matter of record that when S had completed her evidence andthere was no prospect of being recalled Ms Carter spoke to her aboutthe outcome she would wish to have from the trial. Ms Carter said: "validationis for her the most important thing". From the professionals' point of viewthere was a good chance S would progress following guilty pleas, whereasotherwise there were real concerns for her safety.[31] But the guilty pleas were not acts of self-sacrifice by any defendant.Ms Hall submitted it would have been understandable if her client had rejectedthe Crown offer but to his credit he chose not to await the jury verdict and toenter a plea of guilty.[32] I observe that S was unexpectedly steadfast in her evidencenotwithstanding the sustained cross-examination. I say "unexpectedly"because, as everyone who was involved in the trial was aware, there wasa very real possibility, right up until the point when she was sworn, that Swould not be strong enough to give evidence. But she gave evidence andwithstood lengthy cross-examination. I do not share counsel's view thatthe cross-examination significantly impacted on the credibility ofthe complainant. In pleading guilty each defendant avoided any possibility ofa jury verdict against him in respect of charges of sexual violation attracting amaximum period of 20 years imprisonment. There is no room for regardingany of the guilty pleas as synonymous with self-sacrifice. The pleas to lessercharges presented obvious benefits to the defendants in addition tothe incidental benefit to S.[33] In the circumstances, and in light of broadly analogous cases,I consider 10 per cent discounts from individual starting points to beappropriate.(Footnotes omitted).[58] Discounts of greater than ten per cent are rarely given for guilty pleas enteredonce a trial has begun.36 That is particularly so where a complainant has already beenrequired to give evidence. We consider the circumstances that arose in the presentcase are significantly different, however, to those in most other cases where the Crown36 See for example Harris v R [2018] NZCA 632; Heta v R [2012] NZCA 267; Opetaia v R [2011]NZCA 621; Woods v R [2011] NZCA 573; Yim v R [2017] NZCA 421; and O'Carroll v R [2016]NZCA 510 at [60]–[62].agrees to accept a guilty plea to a lesser charge shortly before the trial is about tocommence. In the present case the Crown actively promoted the amendment ofthe charges after the complainant had completed her evidence. As we have alreadyobserved, the Crown took that step primarily because it considered such an outcometo be in the best interests of the complainant. We therefore do not regard the entry ofguilty pleas as being an incidental benefit to the complainant as the Judge described.[59] The defendants undoubtedly also gained a benefit because they receivedan opportunity to plead to lesser charges and thereby eliminate the risk of convictionon charges that would result in much greater sentences being imposed. We do notconsider that fact detracts from the value of the pleas from the perspective ofthe Crown.[60] The panel has differing views as to the appropriate level of discount inthe unusual circumstances of this case. That does not matter, however, because forthe reasons already given we consider the Judge selected a starting point well belowthat which the culpability of the offending required. As a result, no further adjustmentis required to reflect either of the mitigating factors advanced on Mr Thompson'sbehalf because the present end sentence of four years and six months' imprisonmentis plainly not manifestly excessive.Mr Troon[61] The Judge acknowledged that this was Mr Troon's first conviction for sexualoffending and the pre-sentence report assessed him as presenting a low risk of similaroffending in the future.37 He had very few previous convictions and had undertakenemployment and begun progressing towards an apprenticeship since the offendingoccurred. The Judge considered those factors warranted a discount, but the extent ofany discount was offset by the fact that he essentially continued to deny the offendingoccurred.38 He was only regretful that he had placed himself in a position in which hecould be accused of the acts alleged by the complainant. The Judge therefore applieda discount of four months to reflect these factors.3937 Sentencing notes, above n 2, at [96].38 At [97].39 At [99].[62] Mr Tennet attempted to persuade us that the Judge should have applieda greater discount to reflect the positive features she identified. Again, however, thesearguments cannot overcome the hurdle posed by the starting point the Judge adopted.On any view of the facts the end sentence of four years and two months' imprisonmentwas not manifestly excessive.Mr Craig[63] The Judge noted that Mr Craig had a number of previous convictions, none ofwhich were relevant for sentencing purposes.40 He had told the writer ofthe pre-sentence report that he was regarded as a good worker by his employer, but hedid not provide contact details to enable this to be verified.41 The pre-sentence reportassessed Mr Craig as presenting a moderate risk of reoffending in the future becauseof his use of alcohol.42 Alcohol and drug use had been a contributing factor in previousoffending.[64] Furthermore, Mr Craig had expressed no remorse for the offending and statedthat the complainant had welcomed his actions.43 He considered the complainant wasas much a party to the situation as he and his associates. The writer of the reportdescribed Mr Craig's offending as being opportunistic and influenced by his inabilityto exercise self-control in a peer-group situation.[65] Given those factors the Judge was not prepared to make allowance for anymitigating factors other than guilty plea and time spent subject to a bail conditionrequiring him to observe an evening curfew. The Judge applied a discount of onemonth to reflect the latter.44[66] We see no reason to differ from the Judge in relation to the level of discount tobe applied for mitigating factors.40 At [65].41 At [68].42 At [69].43 At [70].44 At [72].Result[67] The appeals against sentence are dismissed.Solicitors:Crown Law Office, Wellington for Respondent