SEMMENS v R [2021] NZCA 135

SEMMENS v R [2021] NZCA 135 [27 April 2021]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA497/2019[2021] NZCA 135BETWEEN JOHNNY SEMMENSAppellantAND THE QUEENRespondentHearing: 15 February 2021Court: Gilbert, Mallon and Edwards JJCounsel: B A Crowley and C O Thorburn for AppellantS K Barr for RespondentJudgment: 27 April 2021 at 9.30 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is allowed.C The concurrent sentences of 13 years' imprisonment for the sexual violationby rape charges are set aside. A sentence of 11 years and nine months'imprisonment is imposed for the rape of A. A concurrent sentence of 11 yearsand three months' imprisonment is imposed for the rape of B.The concurrent sentence of six years' imprisonment for the sexual violationby unlawful sexual connection charge remains. The minimum period ofimprisonment of 50 per cent imposed on all charges also remains.____________________________________________________________________REASONS OF THE COURT(Given by Edwards J)[1] Mr Semmens was convicted of sexual violation by rape and sexual violationby unlawful sexual connection against one complainant (A), and a further charge ofrape against a second complainant (B), following a jury trial before Judge Cathcart inthe District Court at Gisborne. Mr Semmens was sentenced to a total of 13 years'imprisonment, with a minimum period of imprisonment of 50 per cent imposed on allcharges.1[2] Mr Semmens appeals against his convictions on the following grounds:(a) The Judge was wrong to decline the application for severance ofthe charges relating to the two complainants. That is becausethe evidence of A's pregnancy and subsequent termination wasirrelevant and highly prejudicial in the defence of the charges relatingto B.(b) The Judge unfairly criticised defence counsel in his summing up forfailures to put certain matters to the complainants and directed the juryto put less weight on Mr Semmens' evidence about these matters asa result.[3] Mr Semmens submits that these errors gave rise to a miscarriage of justice.Mr Semmens also appeals his sentence on the basis that the starting point of 12 yearsand two months' imprisonment was too high, resulting in a manifestly excessivesentence.The offending[4] The first two charges related to offending against A and arose out of events on13 June 2018.1 R v Semmens [2019] NZDC 18528 [Sentencing judgment].[5] Mr Semmens and A were at a party at his house and both were drinking heavily.A said she went into the hallway to use the toilet and Mr Semmens followed her intothe hallway. He grabbed her around the waist, pulled her shorts, tights and underweardown, and began licking her genitalia. She told him to stop and tried to move awayfrom him. At one point, A was pushed against the wall and then slumped to the floorand passed out. When she woke up, she was in the hallway. Her underwear and tightshad been pulled up, but her shorts were on the floor beside her.[6] A said she felt like sexual intercourse had taken place. She became pregnantand subsequently underwent a termination. DNA analysis confirmed thatMr Semmens was the father of the unborn child.[7] Mr Semmens denied the incident when interviewed by police. At trial, heconceded that he had lied regarding the sexual acts and claimed the sexual activity wasconsensual.[8] The rape of B occurred several months later at B's house on22 September 2018. Mr Semmens and B were heavily intoxicated. B went to bedleaving Mr Semmens in the house with others. B's sister asked Mr Semmens to leave.Instead, he remained and entered B's bedroom where she was asleep. Mr Semmenswoke up another person who was lying on a couch in the bedroom and told him toleave the address.[9] When B woke the following morning, she noticed that her tights andunderpants had been removed and Mr Semmens was lying beside her in the bed.She felt as though sexual intercourse had occurred and she had bruising and tendernessto her right leg, arm and buttocks.[10] Mr Semmens admitted sexual intercourse with B but claimed it wasconsensual.Did the admission of the pregnancy and termination evidence give rise to a riskof a miscarriage of justice?[11] The Judge declined an application by Mr Semmens to sever the chargesrelating to A and B prior to the trial.2 He did so on the basis that each complainant'sevidence was cross-admissible as propensity evidence.3[12] That finding is not challenged on appeal. Rather, counsel for Mr Semmenssubmits that A's evidence regarding the pregnancy and subsequent termination washighly charged, irrelevant, and likely to have an unfairly prejudicial effect on the trialconcerning B.[13] This appeal ground was posited as a challenge to the Judge's decision decliningthe application to sever the charges. But, as the appeal is against the convictions,the issue is whether the joint trials gave rise to a risk of a miscarriage of justice.The specific question to be asked is whether the admission of the evidence relating toA's pregnancy and termination unfairly prejudiced the defence of the trial involvingB.[14] We are satisfied that it did not. The evidence regarding the pregnancy,termination and subsequent DNA analysis was relatively self-contained. It wasrecorded in neutral terms in an agreed statement of facts. Although A also gaveevidence about it during her evidence-in-chief, she did so in relatively brief terms.[15] References to the evidence in the Judge's summing up, and in the Crown'sclosing arguments, were made in similarly confined terms. Overall, the evidence waspresented and treated with moderation and it did not receive undue emphasis at trial.[16] In addition, the Judge expressly directed the jury that the evidence relevant toone charge could not be used as evidence in relation to another (with the exception ofpropensity reasoning as explained by the Judge). He also directed the jury to considereach charge separately, and to put aside sympathy and prejudice. Any risk that the jury2 R v Semmens [2019] NZDC 9434.3 At [32].would unfairly assess the charge involving B because of the pregnancy andtermination evidence relating to A was adequately mitigated by the Judge's directions.[17] It follows that we consider there was no error in declining the application forseverance and no miscarriage of justice occurred as a result of the evidence of A'spregnancy and termination being admitted at trial. This ground of appeal is dismissed.Did the Judge err in directing the jury about the weight to be accorded toMr Semmens' evidence?[18] The second ground of appeal relates to the directions the Judge gave aboutthe weight to be attributed to Mr Semmens' evidence as a result of trial counsel'sfailure to put certain propositions to both complainants in cross-examination.[19] The duty to cross-examine a witness on contradictory evidence arises unders 92 of the Evidence Act 2006. That section provides:92 Cross-examination duties(1) In any proceeding, a party must cross-examine a witness onsignificant matters that are relevant and in issue and that contradictthe evidence of the witness, if the witness could reasonably beexpected to be in a position to give admissible evidence on thosematters.(2) If a party fails to comply with this section, the Judge may—(a) grant permission for the witness to be recalled and questionedabout the contradictory evidence; or(b) admit the contradictory evidence on the basis that the weightto be given to it may be affected by the fact that the witness,who may have been able to explain the contradiction, was notquestioned about the evidence; or(c) exclude the contradictory evidence; or(d) make any other order that the Judge considers just.[20] In Hannigan v R, the Supreme Court described the s 92 duty as embodyingthe principles of fairness and completeness.4 The authors of Mahoney on Evidence:Act & Analysis describe those two principles as follows:54 Hannigan v R [2013] NZSC 41, [2013] 2 NZLR 612 at [104].5 Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence: Act & Analysis (4th ed,The fairness justification focuses on fairness to the witness and the party thatcalled him or her, by providing the witness with an opportunity to commenton contradictory factual matters that he or she has not had notice would be indispute. The completeness justification aims to better equip the fact-finderwith the perspective of all relevant witnesses on disputed factual matters.[21] In this case, the Judge found that there had been a failure to comply withthe s 92 duty in the questioning of both complainants. He elected to admitthe contradictory evidence and give directions to the jury about it. The first set ofdirections concerned the failure to put certain matters in the cross-examination of B.The second set of directions concerned the failure to put certain matters inthe cross-examination of A. We turn now to consider each set of directions.Complainant B: the presence of a male in the bedroom[22] B's evidence-in-chief at trial was that a male relative, SW, was asleep onthe couch in her room when she went to bed. She said she "crashed out" and wokethe next morning to find Mr Semmens in the bed and her underwear and tightsremoved. SW was no longer in the room.[23] SW also gave evidence at trial. He said that he was asleep under a blanket onthe couch in B's bedroom when Mr Semmens came into the room, took the blanket offhim, and told him to "boot it". SW said that B was asleep at the time he left the room.The Crown case at trial was that Mr Semmens had asked SW to leave the room so asto facilitate the rape of B.[24] Mr Semmens gave evidence at trial. He said that as he was leaving the house,B grabbed him by the hand, led him to her room, and into her bed. When he enteredthe room, he said that there was no one else there apart from B's dog. He maintainedthat sexual intercourse had occurred while B was awake and that it was consensual.[25] The account given by Mr Semmens was put to SW in cross-examination. Itwas suggested to SW that he may have been mistaken about who had entered the room,and that he was too drunk to remember what happened. It was also put to him onmultiple occasions that he was lying about Mr Semmens entering the room in order toThomson Reuters, Wellington, 2018) at [EV92.01(1)].bolster B's case. SW denied that he was lying and maintained that Mr Semmens hadasked him to leave B's room that night.[26] Mr Semmens' version of events was also put to B in cross-examination.Specifically, it was put to her that she had led Mr Semmens by the hand into herbedroom, and that her dog was in the room when she went in. B denied that she hadinvited Mr Semmens into her room. She admitted having a dog in the house but didnot directly answer the question about whether the dog was in her room at the time,although she subsequently confirmed in re-examination that the dog was not inthe room. B was also challenged on her evidence that she was asleep duringthe intercourse and it was put to her that she was lying about that. However, it wasnot specifically put to B that there was no other person in the room when Mr Semmensentered the room.[27] The Judge considered the failure to put this proposition to B was a breach ofthe duty in s 92 and that a direction to the jury on the weight to be attributed to theevidence should be made. The relevant sections of the Judge's summing up are asfollows:Now I need to talk to you regrettably about certain propositions thatwere not put to [B] and [A]. As you know it is part of the Crown'scase that [SW] was asleep on the sofa in [B's] room. The Crown sayson the basis of [SW's] evidence in conjunction with other evidencethere is support for the proposition Mr Semmens approached [SW]and in effect commanded him to leave that room. And the Crown, ineffect, says that then facilitated the rape of the complainant while shewas unconscious in the bed. So that is a significant component tothe Crown's narrative before you. And you heard [the Crown] placereal emphasis on that in her closing address.Now you will recall [SW] was directly challenged by [counsel forMr Semmens] on the point along with a suggestion to [SW] that hewas giving false evidence to assist [B's] case. I am sure you willremember that passage in the trial. Then [SW] was specificallyaccused about lying when he said he was sleeping in [B's] room andbeing awoken by someone. So those propositions were put straight to[SW] by [counsel for Mr Semmens]. But what would have struck youis the defence never challenged [B] on that point. It was neversuggested in cross-examination to her that there was no one in [that]room. So, she has had no opportunity to comment on that point.Because of the way this developed in the trial the Crown, therefore, isunder a disadvantage. So, I must direct you about what weight youneed to attach to this evidence.I direct you to attach to that evidence what weight you consider isappropriate affected by the non-cross-examination on the point.Non-cross-examination of the complainant means it must carry lessforce or weight than it would otherwise. So, the weight ofthe challenge to [SW] is weakened, the weight of Mr Semmens'evidence to the contrary on the point is also accordingly weakened.With those directions in mind it is, therefore, up to you as to how muchweight in the end you give Mr Semmens' evidence on that specificpoint.[28] Counsel for Mr Semmens says the Judge was wrong to suggest that the failureof trial counsel to cross-examine B on this point affected the challenge made to SW orthe weight of Mr Semmens' evidence. He submits that, given B's evidence that shewas asleep when Mr Semmens went into the room, there was little point in challengingher on who was in the room at the time she entered.[29] The key issue in relation to this charge was one of consent. Mr Semmens'defence at trial was that B had invited him into the room, the sexual intercourse wasconsensual, and it had taken place while B was awake. B, however, denied invitingMr Semmens into her room, said she was asleep or unconscious at the time the sexualintercourse took place, meaning she did not, and could not, have consented to it.[30] The assessment of the s 92(1) factors will depend, in part, on how the evidenceunfolds at trial. For the purposes of determining this appeal, we are prepared to deferto the Judge's assessment that s 92 was triggered in this case without expresslydetermining the point. However, we consider the circumstances of counsel's omission,and the relevance of the evidence not put to B, required a moderate and balanceddirection to the jury. It is in this respect that we consider the Judge erred. Statementsin the summing up such as "regrettably certain propositions were not put" and"the Crown is under a disadvantage" implied a criticism of defence counsel thatwas unfair given the relative significance of the evidence not put to B. Similarly,phrases such as "what would have struck you" suggested that counsel's deficiency wasof key importance. A direction to the jury that the challenge to SW was weakened alsowent too far in the circumstances.[31] It follows that we consider there were errors in the Judge's directions on thispoint. Whether those errors gave rise to a miscarriage of justice is considered below.Complainant A: the nod to follow[32] A's evidence at trial was that at one point in the evening she and Mr Semmenswere alone in the laundry where they and others had been drinking. She then leftthe laundry to go to the toilet, but only made it to the hallway. A said that it was therethat Mr Semmens grabbed A around the waist and sexually assaulted her.[33] The cross-examination of A proceeded on the basis that the sexual activity wasconsensual. It was put to her that, contrary to her evidence, it was Mr Semmens whowalked out of the laundry and that A followed him. She denied that this happened. Itwas also put to her that she was the one who walked up to Mr Semmens in the hallwayand kissed him, and that she helped him remove her jeans and underwear so that hecould perform oral sex on her. She denied that any of this happened.[34] When Mr Semmens gave evidence, he said that A, her partner and himself weredrinking in the laundry. He said he began "feeling up" A, and when A's partner leftthe laundry, Mr Semmens "hinted" to A to follow him into the hallway by nodding ather and that A had followed him there. The relevant part of his evidence in chief is asfollows:A I hinted to [A] – when [A's partner] had left I hinted for [A] to follow.Q You whated?A I hinted to [A] to follow.Q Hinted? How did you hint?A Oh, I nodded at her. I went like that.Q Where did you go to?A The hallway.Q Did she follow you?A Yes.THE COURT ADDRESSES MR FORSTER (16:49:02) – LEGALDISCUSSION[35] The Court's interruption was to point out that the proposition regarding the nodhad not been put to A in cross-examination. Mr Semmens completed his evidence,and the Judge saw counsel in chambers. Counsel for Mr Semmens sought to recall A,but that application was opposed by the Crown. The Judge declined to recall A,deciding that the appropriate course was to direct the jury regarding the weight to beattributed to Mr Semmens' contradictory evidence.6[36] Those directions in the Judge's summing up were as follows:Also, you will recall yesterday I raised with [counsel for Mr Semmens] myconcern over the failure to put to [A] certain not insignificant aspects of thenarrative claimed by Mr Semmens during his evidence. As you recallMr Semmens said he hinted at [A] and that she gave him a gesture—a no—togo to the hallway area. The obvious inference being suggested byMr Semmens is that by giving the gesture, it is a signal that she wants to followhim into that hallway area.That specific and important proposition was never put to the complainant, [A].Again, in the same way you are entitled to use that fact and assess its weightbecause of failure to put it to [A] and also to assess Mr Semmens' credibilityon that point. Again, like the other matter I raised a moment ago it is for youin the end to give what weight you attach to that evidence.[37] We consider the reference to "a no" above is most likely a typographical error,with the correct word being "nod". That is the only way of making sense of thesentence that follows, namely, the inference is that by giving the gesture it is a signalthat she wants to follow him into the hallway area.[38] The first point to note is that the Judge mischaracterised Mr Semmens'evidence regarding the nod. Mr Semmens had said that he gave A a nod, whereasthe Judge summarised Mr Semmens' evidence as saying that it was A who had givenhim a nod.[39] It is likely that this mischaracterisation affected the Judge's decision aboutwhether s 92 was triggered in the circumstances. But it does not necessarily followthat s 92 was not triggered at all. As we explain below, the point is not determinativeof the appeal, and so we proceed on the basis that s 92 was triggered in this caseirrespective of the mischaracterisation of the evidence.6 R v Semmens [2019] NZDC 10345 (Ruling 1 of Judge Cathcart) at [9].[40] However, and like the position with the directions regarding B, the directionthe Judge gave attributed more significance to the failure to cross-examine on the pointthan was otherwise warranted. For example, the Judge referred to the evidence as "notinsignificant aspects of the narrative claimed by Mr Semmens", and later referred to itas the "specific and important proposition". These statements contained an implicitcriticism of defence counsel, which added to the earlier criticism in relation to B. Theyalso placed more weight on the omission than was justified. That was an error in ourview. Whether it gave rise to a risk of miscarriage is considered next.7Was there a risk of a miscarriage of justice?[41] Although it would have been preferable for the Judge to temper the directionshe gave in relation to the failure to cross-examine both A and B, we do not considerthe errors gave rise to a risk of miscarriage, in the sense that there is a real risk theoutcome of the trial was affected. We say that for three reasons.[42] First, although the omission was overemphasised, the directions werenevertheless tailored to the specific evidence not put to the witness. Importantly,the directions did not invite the jury to accord less weight to Mr Semmens' evidencegenerally or invite broad adverse credibility findings to be made against him.Any errors were therefore relatively limited in their reach.[43] Second, the directions must be seen in the context of the summing up as awhole. This was a comprehensive summing up (running to some 137 paragraphs inwritten form) of which the directions regarding the failure to cross-examine formed avery small part. The key issues at trial were the questions of consent and reasonablebelief in consent. The Judge directed the jury extensively on the law regarding thosetwo issues, including the time at which those questions were to be assessed.The question trail also asked the jury to consider those questions at the time the sexualactivity took place. We consider it unlikely that the errors in the Judge's directionswould have had a material impact on the jury's deliberations regarding these issues.7 Criminal Procedure Act 2011, s 232(4)(a).[44] Third, the Crown evidence against Mr Semmens was strong. The evidence ofboth complainants, who did not know each other, provided mutual support forthe credibility of their respective accounts. The Judge directed the jury onthe assessment of credibility and reliability, and the assessment of Mr Semmens'evidence generally. In those circumstances, any error in the directions regardingthe failure to cross-examine on certain points is unlikely to have made any differenceto the end result.[45] This ground of appeal is also unsuccessful. The appeal against convictions isaccordingly dismissed.Sentence appeal: was the starting point too high?[46] Mr Semmens was sentenced to concurrent sentences of 13 years' imprisonmentfor each of the rape charges, and a concurrent sentence of six years' imprisonment forthe unlawful sexual connection charge. A minimum period of imprisonment of50 per cent was imposed on all charges.8[47] Those sentences were reached by taking a starting point of 12 years and twomonths' imprisonment for the totality of the offending.9 An uplift of 10 months forprior convictions was then applied.10 There is no challenge to the uplift orthe imposition of a minimum period of imprisonment. The sole ground of appealrelates to the starting point adopted by the Judge.[48] The Judge considered there to be an underlying pattern to the offending andcategorised it as that of a sexual predator. He said that there was an element ofpremeditation in that Mr Semmens preyed on vulnerable women who wereincapacitated due to alcohol.11 The Judge concluded that the offending fell withinthe upper end of band two of R v AM (CA27/2009),12 and, after considering cases citedto him by defence counsel, fixed the starting point of 12 years and two months'imprisonment.8 Sentencing judgment, above n 1, at [18]–[20].9 At [12].10 At [15].11 At [5].12 At [8], referring to R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.[49] Ms Thorburn, who made submissions on this aspect of the appeal on behalf ofMr Semmens, submits that a starting point of seven to eight years' imprisonmentwould have been appropriate for the offending against A with an uplift of no more thanthree years for the offending against B. That would lead to a total starting point of10 or 11 years' imprisonment, and an end-sentence considerably less than the 13 years'imprisonment imposed.[50] We start with the aggravating features of the totality of the offending, of whichthere are several:(a) Both complainants were extremely vulnerable due to their intoxicationwith the rapes taking place when they were effectively unconscious.(b) The offending had a devastating impact on both women, with the extentof the harm to A, due to her pregnancy and subsequent termination,being particularly severe.(c) There was an element of premeditation in that both complainants weretargeted due to their advanced state of intoxication.(d) There were two rapes, approximately three months apart, in verysimilar circumstances.[51] In addition, the unlawful sexual connection offending, and Mr Semmens'persistence in the face of A's protests, aggravates the offending against her.The bruising to B, and the fact that the offending took place in her home, and in herbed, are additional aggravating features of the offending against B.[52] There is no issue with the Judge's categorisation of this offending as fallingwithin band two of R v AM. That has a starting point range of seven to 13 years'imprisonment and was described by this Court as follows:13[98] By comparison with rape band one, this band is appropriate for a scaleof offending and levels of violence and premeditation which are, in relative13 R v AM (CA27/2009), above n 12.terms, moderate. This band covers offending involving a vulnerable victim, oran offender acting in concert with others or some additional violence. It isappropriate for cases which involve two or three of the factors increasingculpability to a moderate degree.[53] The issue is whether fixing the starting point towards the top end of that bandresulted in a manifestly excessive sentence.[54] Counsel for both parties referred us to cases involving rapes against a singlecomplainant, and those where the defendant had committed rapes against differentcomplainants on different occasions. We have found three cases of this Court, fallinginto the first category, to be of assistance in determining a starting point.14 All involveda complainant who was intoxicated or sedated to the point of unconsciousness.[55] In Tahiri v R, the rape took place in the complainant's bed and she was unawarethat it was occurring.15 The complainant was the mother of a friend of Mr Tahiri's andhad known him since he was a little boy. She had invited him to stay on the couch onthe evening of the rape. A starting point of eight years' imprisonment was held to beat the top end of the available range but nevertheless available to the sentencingJudge.16[56] In B (CA231/2017) v R, the complainant and defendant knew each other.17The defendant was in the complainant's house when the offending occurred.The defendant forced his penis down the complainant's throat, after which the rape,which she could not remember, took place. A starting point of eight years'imprisonment was not challenged on appeal.[57] In Simpson v R, the complainant and her friends went to Mr Simpson'sworkplace for an event prior to a sporting match.18 The complainant was heavilyintoxicated and became sick. Mr Simpson drove her and her friends to the apartment14 The Crown also referred us to R v Morris [1991] 3 NZLR 641 (CA). That case was cited in R vAM (CA27/2009), above n 12, at [102] as an example of a case falling towards the upper end ofband two. The circumstances of that offending were sufficiently different to the present case soas to be of limited assistance in determining a starting point.15 Tahiri v R [2013] NZCA 73.16 At [15].17 B (CA231/2017) v R [2018] NZCA 137.18 Simpson v R [2016] NZCA 95.she was staying at and carried her inside to bed. Mr Simpson then dropped her friendsoff to the sports event. He returned to the apartment, entering through an unsecureddoor, and raped the complainant while she was asleep. The complainant awoke to findherself being penetrated. A starting point of nine years and six months' imprisonmentwas held by this Court to be within the available range.19[58] We consider that the offending in Tahiri v R is less serious than the offendingagainst A. That is due to the additional offending against A, namely the unlawfulsexual connection offence, and the impact of the pregnancy and termination.However, the offending in Tahiri v R is broadly on a par with the offending against B.[59] The offending in B (CA231/2017) v R is on par with that against A, and moreserious than that against B. Finally, the offending in Simpson v R could be consideredless serious than that against A, and similar to that against B. Arguably, however, therewas a greater level of premeditation in that case when compared to the offendingagainst A and B.[60] Based on these cases, we consider a starting point of eight years' imprisonmentfor the offending against A, and seven years and six months' imprisonment forthe offending against B could be justified if each set of offending was sentenced on astand-alone basis. That would lead to a total starting point of 15 years and six months'imprisonment which would need to be adjusted for totality purposes. Guidance onthe extent of that adjustment may be received from cases involving rapes against twoseparate complainants. There were two cases of this Court cited to us by the appellant.[61] In R v Dawson, the first complainant had been in a relationship withMr Dawson which was characterised by violence.20 Mr Dawson went to the firstcomplainant's house, strangled her, pressed his hand hard on her face, and took herphone. He returned the following morning, forced her on the bed, pushed his wristagainst her throat so she passed out, held a knife to her arm, threatened to slice herthroat and cut some of her hair. Mr Dawson then pulled her tights and underweardown, threatened to slice her genitalia and raped her. The second complainant was19 At [58].20 R v Dawson [2012] NZCA 225.raped in a car which was parked in a remote spot near a beach. Mr Dawson placed aknife on the dashboard which he made the complainant aware of when she told him tostop. Both complainants were 16 years old.[62] A starting point of 12 years' imprisonment for each of the sexual violationcharges, on a stand-alone basis, was not challenged on appeal. What was challengedwas the 12-month uplift the sentencing Judge applied to reflect that Mr Dawson wasbeing sentenced on two charges involving two different complainants, resulting in aneffective sentence of 13 years' imprisonment imposed for each rape charge.21On appeal, this Court considered that the end sentence of 14 years' imprisonment,which included a 12-month uplift for other offending, was at the lower or end ofthe available range.22[63] The second case of Solicitor-General v Iti involved two defendants who pickedup the first complainant from the street at night in a van and drove her to a secludedlocation where one defendant raped her.23 The second complainant was also raped inthe van driven by both defendants after being offered a lift late at night and beingdriven around town. A global starting point of 10 years' imprisonment was increasedto 13 years' imprisonment on appeal with this Court noting that a starting point 12 to18 months higher than this could not have been successfully challenged on appeal.24[64] Both cases involved offending more serious than the present case due to theadditional acts of violence, use of weapons, level of premeditation and the fact thatthere were multiple offenders. Something less than the starting points adopted in thosecases is warranted.[65] We have also had regard to High Court cases involving two complainants insetting the starting point.25 Starting points ranging from 12 to 15 years' imprisonmentwere adopted in those cases. We consider the offending in those cases to be generally21 At [56] and [58].22 At [60].23 Solicitor-General v Iti [2012] NZCA 27.24 At [39].25 R v N [2019] NZHC 1321; R v John [2018] NZHC 89; R v Dixon HC Auckland CRI-2009-044-486298, 14 August 2009; and R v Onaariki HC Auckland CRI-2008-404-313, 23 February 2009.more serious than in the present case due to the additional acts or threats of violence,use of weapons, and the age of some of the complainants.[66] Taking all of these cases into account, we consider the starting point of 12 yearsand two months' imprisonment adopted by the Judge was outside the available range.We do not diminish the seriousness of the offending or its impact on the complainants.However, the principle of consistency requires comparable sentences to be imposedfor comparable offending.26 The comparison of Mr Semmens' offending to thatinvolved in other cases suggests that a starting point less than 12 years was appropriate.We consider an overall starting point of 11 years and six months' imprisonment wouldreflect the gravity of Mr Semmens' offending and his overall culpability in this case.[67] The 10 month uplift for prior convictions was not challenged on appeal, butrequires adjustment for proportionality and in setting the appropriate end sentence.The only relevant conviction in the last 10 years of any relevance to the indexoffending is a conviction for male assaults female in 2014, for which Mr Semmenswas sentenced to five months' imprisonment. The only other convictions for sexualoffending were entered more than 10 years ago, when Mr Semmens was 15 and 19years of age respectively. Taking into account the age of these convictions andthe sentences imposed, we consider an uplift of three months is appropriate forMr Semmens' prior convictions.[68] This brings the end sentence to 11 years and nine months' imprisonment.It follows that the sentence imposed by the Judge was manifestly excessive andthe appeal against sentence is allowed.Result[69] The appeal against conviction is dismissed[70] The appeal against sentence is allowed.26 Sentencing Act 2002, s 8(e).[71] The concurrent sentences of 13 years' imprisonment for the sexual violationby rape charges are set aside. A sentence of 11 years and nine months' imprisonmentis imposed for the rape of A. A concurrent sentence of 11 years and three months'imprisonment is imposed for the rape of B. The concurrent sentence of six years'imprisonment for the sexual violation by unlawful sexual connection charge remains.The minimum period of imprisonment of 50 per cent imposed on all charges alsoremains.Solicitors:Public Defence Service, Wellington for AppellantCrown Law Office, Wellington for Respondent