HALES v R [2023] NZHC 670

HALES v R [2023] NZHC 670 [29 March 2023]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2023-443-4[2023] NZHC 670BETWEEN JONATHAN ROBERT HALESAppellantAND THE KINGRespondentHearing: 22 March 2023Appearances: N Bourke for AppellantR L Hicklin for RespondentJudgment: 29 March 2023JUDGMENT OF McQUEEN J[1] On 15 February 2023, Jonathan Hales (the appellant) was sentenced byJudge Grieg in the New Plymouth District Court to three years' imprisonment,1 on asingle charge of sexual conduct with a person under 16 years of age, to which hepleaded guilty.2 Mr Hales now appeals that sentence, on the grounds that the Judgeadopted a starting point outside of the available range and applied inadequatediscounts for personal mitigating factors. He says that the sentence is manifestlyexcessive and that a sentence of two years imprisonment or less converted to homedetention is the least restrictive sentence appropriate in the circumstances.[2] The Crown opposes the appeal, and says that the starting point and discountswere appropriate, meaning that the sentence is not manifestly excessive.1 R v Hales [2023] NZDC 2788.2 Crimes Act 1961, s 134; maximum penalty ten years' imprisonment.[3] For the reasons below, I consider that the appeal should be allowed. I considerthe Judge erred in failing to award sufficient discounts for personal mitigating factors.BackgroundFactual Background—offending[4] The victim was 14 years old when she met the defendant at a church youthgroup. At that time Mr Hales was 33 years old. The victim told Mr Hales at that timethat she was 15 years old. Soon after meeting, Mr Hales and the victim commenced arelationship. At that time the victim was suffering from depression and disclosed toMr Hales that she had been sexually abused by another male. Eventually, Mr Halesasked the victim to be his girlfriend. On his return to New Plymouth after a periodaway in the South Island, the relationship continued, developing into a sexualrelationship around the time the victim turned 15, being 9 September 2016.[5] The sexual connection initially started by Mr Hales asking the victim toperform oral sex on him, which occurred in a park, in his car, or at a friend's house.Mr Hales would also perform oral sex on the victim. They had full sexual intercoursefor the first time on or around 14 October 2016, after which, it became a regularoccurrence, meaning one or more times a day. During this time, Mr Hales alsointroduced the victim to drugs, and they would smoke cannabis together regularly.Mr Hales then encouraged the victim to leave school, and she moved in with him whenshe turned 16 years old. He attempted to control her and isolated her from her familyand friends. She later became pregnant and gave birth to a daughter on 2 October 2018,having just turned 17 years old.[6] When spoken to by the police, Mr Hales said that he was not in a relationshipwith her, they had never talked about being boyfriend and girlfriend, had never livedtogether, and that he was simply trying to help her with her mental health issues.Mr Hales told the police that the victim kept begging him for sex, and telling him thathe was doing nothing wrong, that he had said no at the start, but then slept with heronce when she was 16 years old. Mr Hales said that he had never initiated sex with thevictim, and that he failed by saying yes.Procedural background[7] Because of the submission by Mr Bourke, counsel for the appellant, that theprocedural background is relevant to the appeal, I summarise his description here.[8] Mr Hales was originally represented by Ms Mooney. Prior to the case reviewhearing, resolution discussions were entered into with the Crown. Because of delaysin the transcription of the victim's evidential video interview, it was agreed that thematter be administratively adjourned to call over with a full guilty plea creditpreserved. A guilty plea was then entered, and Ms Mooney arranged for a s 27 report,which was obtained and filed with the District Court for sentencing.[9] Mr Hales' denial of significant facts in his interview with the s 27 report writer(discussed below) led the Crown to file a memorandum suggesting that sentencingmay not be able to proceed. At the scheduled sentencing, Mr Mooney (on behalf ofMs Mooney), sought leave to withdraw so that fresh counsel could take Mr Hales'instructions as to whether he wished to proceed with sentencing or take an alternativecourse of action.[10] Mr Bourke was then assigned as defence counsel. He met with Mr Hales, whoconfirmed that he wished to maintain his guilty plea. Judge Hikaka directed thatsentencing start afresh, and ordered a further PAC report, as well as a s 38 report.Mr Hales' denials were again repeated in the s 38 report. The Crown filed anothermemorandum raising similar concerns, which was responded to by Mr Bourkeindicating that Mr Hales did not wish to vacate his plea or engage in a disputed factshearing. Mr Bourke says that he explained to Mr Hales that sentencing would proceedon the basis of the summary of facts, and that matters inconsistent with the summaryof facts would be disregarded. Mr Bourke says he did not rely on the s 27 report whensentencing actually occurred.[11] Late in the afternoon on 14 February 2023, the day before Mr Hales'sentencing, Mr Bourke was contacted by Ms Clarke, Crown Solicitor for the Taranakiregion. She considered it necessary to advise him that the Court had engaged inex parte communications with the Crown, requesting, apparently at the behest of thesentencing judge, copies of various statements prepared in the investigation ofMr Hales' charges. This was extremely concerning to Mr Bourke, who considered thatthose statements were not filed as evidence at any stage, were not accepted, and hadno evidentiary value for the purposes of sentencing. His request for a chambers hearingprior to sentencing was declined, however, the Judge briefly addressed the issue duringthe sentencing hearing. This is discussed further below. I note that I have not viewedthose statements in my consideration of Mr Hales' appeal.PAC reports[12] Three reports providing advice on Mr Hales' sentence were provided to theCourt. All three recommended a sentence of imprisonment.[13] In his interviews with the report writer, Mr Hales consistently maintained thathe had not initiated the sexual connection or intercourse with the victim. He alsoplaced emphasis on a brain injury that he obtained two years prior to the offending,following an altercation on a night out drinking, resulting in him needing to learn towalk and talk again. The report writer consequently identified the following factorsrelevant to his sentence:(a) his attitude to his offending;(b) poor problem-solving skills;(c) a heightened sense of entitlement; and(d) offending related sexual arousal.[14] Mr Hales also proposed available and suitable addresses for home detention ifimposed by the court, firstly at a friend's house, and then with his mother.Section 27 cultural report[15] A s 27 report was provided for Mr Hales by Alexander El Amanni, developedin consultation with Mr Hales and his psychologist. Mr El Amanni produced the reportfollowing a two and a half hour interview with Mr Hales, but did not talk to any otherperson apart from Mr Hales' psychologist.[16] The report asks the court to consider Mr Hales':(a) Mental wellbeing issues: including post-traumatic-stress-disorder,depression, anxiety, sleep deprivation, alcohol dependence, andsuicidal thoughts and planning.(b) Dysfunctional parenting: Mr Hales having no father or male role model,and a 'poly-family' upbringing.(c) Adverse childhood experiences: including physical, sexual andemotional abuse and neglect, and household dysfunction.(d) Neurological and cognitive issues: evidence of ADHD, and histraumatic brain injury.(e) Continued assertion that the victim pursued sexual conduct with him,and that his cognition and boundaries were jeopardised due to trauma.[17] The report paints a picture of Mr Hales as a person with a difficult past whowas "vulnerable to manipulation by the victim". Between the ages of four and six yearsold, Mr Hales was sexually assaulted by an older male who came to babysit him in hismother's absence. After this, he moved between many households as he livedtemporarily with the family and friends of his mother's partner because Mr Hales "wasan inconvenience in the relationship". During this time he was physically assaultedand emotionally abused by "several families he lived with", for being "the onlyEuropean person with light skin". The report says that during the period when hismother was in a further relationship, Mr Hales witnessed her being assaulted, hermental illness, and her substance abuse.[18] The report states:The victim of Mr Hales' offence reportedly solicited the sexual conductbetween them over several months. The victim reportedly manipulatedMr Hales with false information, doctored her date of birth on her social mediaprofile, and eventually incited Mr Hales to engage in sexual conduct.Mr Hales was in the early stages of recovery from his [traumatic brain injury]and had significantly impaired cognition when he met the victim. Thisimpairment made him vulnerable to manipulation and exploitation.Furthermore, Mr Hales is predisposed to passive sexual boundaries due to thetrauma of sexual victimisation. These passive boundaries made him furthervulnerable to people seeking to engage in sexual conduct with him.[19] Mr Hales also expressed the view to the report writer that the victim'sexperience of sexual victimisation by an older male in her childhood may have resultedin her developing a sexual interest in older males. He said that the victim's familyencouraged their relationship, and that since the end of the relationship she has madefalse accusations. Contrasted against this view is an expression of "deep regrets" forhaving sexual conduct with the victim and that Mr Hales takes "full responsibility forhis actions".[20] Mr Hales has four children, including one with the victim of the presentoffence. He has worked in the trades and has more recently been a truck driver.Notwithstanding his previous employment, he is a heavy drinker.Section 38 report[21] The purpose of the s 38 report was to assist the District Court in determiningthe type and length of sentence that might be imposed on Mr Hales. It was orderedpursuant to s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, andprepared by Dr Shanmukh Lokesh, a Forensic Psychiatrist.[22] The report confirms Mr Hales' experience of traumatic brain injury andmanagement through community mental health services in Taranaki following asuicide attempt. The report states:Mr Hales described an extremely underprivileged upbringing with significantsexual abuse during his childhood, the lack of a paternal figure, anddysfunctional relationships. The assessment indicated that Mr Hales suffersfrom TBI (Traumatic Brain Injury), historical, currently in remission, post-traumatic stress disorder, and possible borderline personality disorder. Hismental health issues are in remission with optimal treatment with the relevantpsychotropic medication. The possibility of ADHD was recently raised, andhe is at the early stages of treatment from the community mental healthservices.[23] Dr Lokesh reviewed a large amount of information, had discussions withMr Bourke, and received correspondence from Mr Hales' mother. As to Mr Hales'traumatic brain injury, Dr Lokesh records that Mr Hales sustained a skull fracture andrequired substantial rehabilitation in 2014. The report states:He recalled that around that time, he had significant difficulties in day-to-dayactivities like showering. He would have recurrent headaches and lose hissense and smell. He also reported being easily misled by others and describedhimself as quite "vulnerable" during the recovery phase. The recordssubstantiated these findings, and a CT scan indicated, "There are small focalareas of decreased brain volume of previous brain injury in the right anteriorlobe under the supraorbital right frontal lobe where there is also focal loss ofcortical density". He also reported a worsening of his attention and frequentmood swings. He described that these concerns gradually improved over time,although he still has traumatic flashbacks about the assault.[24] Mr Hales reported again sexual abuse from a young age, and the fact that heleft school aged 16. Mr Hales reported alcohol dependency dating back to his teenageyears. He has used antidepressant medications at times throughout his life, and hadrecurring suicidal ideation. The report also expresses the view that Mr Hales' frontallobe functions indicate impulsivity, perseveration, lack of abstract reasoning,suggestibility, and poor problem-solving strategies.[25] However, Mr Hales disagreed with most of the description of the offendingprovided to Dr Lokesh, expressing the view that he pleaded guilty because he did notwant the victim to go through stressful court hearings. He reported that he believedthat the victim was 16 years of age when they had sexual intercourse and denied havingany earlier sexual contact with the victim. He denied that the sexual intercourse hadbeen regular and that he provided the victim with drugs. He repeated that he wasvulnerable at the time of the offending, that the victim demanded sex, and that thecharges were only laid because the victim's family were angry at him for refusing tosign adoption papers for their child.[26] Overall, Dr Lokesh formed the view that Mr Hales has a low risk of furtheroffending. As to his overall criminal responsibility, Dr Lokesh concluded thatMr Hales' traumatic brain injury should fairly be associated with suggestibility,vulnerability, and a tendency to be exploited, leading to poor judgement and decision-making in stressful situations. Dr Lokesh was of the view that it would be possible tomanage Mr Hales in the community if a degree of compulsion was applied, and that ifa custodial sentence was received, his mental health and wellbeing would still requireongoing treatment. Dr Lokesh noted Mr Hales' willingness to engage withpsychological interventions to assist rehabilitation.District Court decision[27] At the outset, the Judge addressed the issue regarding the statements he hadrequested from the Crown, stating:3I need to record that at the start of this sentencing there was some discussionbetween your counsel and myself because he had become aware that I hadyesterday asked to see the formal written statements, that is, the evidence thatwould have been filed for the prosecution witnesses had you pleaded not guiltyand taken this to trial. Clumsily, that request for the formal written statementswas made by an email solely between the Court and the Crown, that is, theprosecution, and that excluded Mr Bourke, and he quite rightly raised that assomething which could be significant. Happily, when the Crown replied theycopied in Mr Bourke, so he did immediately become aware.The purpose of my wanting the formal written statements was because therewas such a vast gulf between the facts alleged by the prosecution and theversion of events that you have consistently advanced. As I said to Mr Bourke,anyone who has ever practiced in the area of criminal law, particularly asdefence counsel, and I did for many years, is aware that clients say to you: "Ijust want to plead guilty and get it over and out of the way", and of course asa lawyer you have to say to your client: "You must understand that the Judgewill sentence you on the basis of your guilty plea", not "I know you arepleading guilty, but you didn't really do it". There is only one way a court canproceed with that.So, because I was aware of that, because I was aware of the vast gulf and thedifference between your version of events and the prosecution's events, andin particular because of some of the things that you had said to Dr Lokesh andthe cultural report writer about the involvement of the victim's family in this,I wanted to see what the parents of [the victim] had said to the police. As aresult of that, I am going to sentence you solely on the basis of the summaryof facts, and any idea that I might have had that I could somehow fudge it asan acknowledgement that whilst you pleaded guilty you were not really asguilty as they made out, or even hardly guilty at all, or not guilty at all as youhave asserted in some cases, I put right out of my mind.[28] The Judge then proceeded by describing the impact of Mr Hales' offending onthe victim. The Judge stated:43 Above n 1, at [1]–[3].4 Above n 1, at [11].what is clear is that this has had a devastating effect on her life because shewas a young and very vulnerable person when you met her. Apart from thelong-lasting legacy of a child from this relationship, she did drop out of school,she became alienated from her friends and family, she got into drugs. I notethat she says methamphetamine as well, or her parents do, I am not sure which,but I sentence you on the basis that it was cannabis, not anything more serious.This will impact her for the rest of her life, sadly. I would like to say otherwise.[29] The Judge then addressed the s 27 report. His Honour noted that the report"was based on a two-hour conversation with you, held over the phone, and that reportwriter has not made any attempt at all to corroborate any of the potentially veryimportant information that he was provided with".5 Accordingly, the Judge placedlittle weight on the report's contents. The Judge considered that Mr Hales' discussionwith Mr El Amanni could only be explained if it was accepted that Mr Hales had liedabout what happened between him and the complainant.6 His Honour came to theconclusion that Mr Hales' assertion that he was vulnerable to manipulation and hadbeen manipulated by the victim was a complete denial of the summary of facts, andthat therefore he could not have confidence that Mr Hales had told the report writer"anything approaching the truth about [his] background".7[30] The Judge viewed Mr Hales as a manipulative person, and that he wascontinuing his manipulation of the victim, by claiming that in fact it was she that wasat fault. However, the Judge did accept that Mr Hales suffered a traumatic brain injury,had attempted suicide, used alcohol extensively, and suffered a difficult and abusivechildhood. The Judge obtained that information, which he viewed as reliable, from thes 38 report.[31] The Judge considered that the aggravating factors of the offending were abuseof trust, a significant age gap, full penetrative sex on a number of occasions, andsignificant adverse effects on the victim, who was vulnerable due to her age. HisHonour considered that Mr Hales' had groomed the victim, and treated her in ademeaning fashion.5 At [14].6 At [17].7 At [17].[32] However, the Judge did also accept that although there was a significant agegap, it was proper to describe Mr Hales as immature. The Judge accepted thatMr Hales' brain injury loosened his self-control, stating:8On your behalf, Mr Bourke has made a number of good points and I haveconsidered them carefully. I do accept that your brain injury probably didloosen your self-control, and I think I likened it just now during discussionswith counsel to someone who smokes when they have got a geneticpredisposition to cancer. You had a predisposition, I am prepared to accept thatyou may have had some predisposition to sexual offending and that your braininjury reduced your level of self-control. I do not accept it was anything to theextent that you have made out, I am just unable to do so, but I think Mr Bourkeis right, this occurred not long after your brain injury, you have not behavedlike this in the past, and you have not behaved like this since.[33] The Judge adopted a starting point of four and a half years' imprisonment—the midpoint between the five years advocated for by the Crown, and the four yearsadvocated for by the defence. His Honour accepted that Mr Hales should properlyreceive a full 25 per cent discount for his guilty plea. As to further discounts, the Judgeconsidered again the s 27 report, expressing the view that it was extraordinary that noattempt at corroboration had occurred. The Judge said that he was disregarding thecultural report completely. His Honour went on to say:9Had this been a one-off incident of intercourse which you clearly thenregretted and did your best to distance yourself from, I could accept that yourbrain injury was the most significant factor in all of this. However, youembarked on a sustained relationship, lying about your age to [the victim's]parents, pretending that you were only a few years older than her, youintroduced her to drugs, you separated her from her family by your controllingbehaviour. Over a sustained period of time you embarked on a deliberatecourse of conduct solely designed to have a long-term sexual relationship withthis young woman, and as a result you have done great harm to her.So, from a starting point of four and a half years' imprisonment or 56 months,taking into account your guilty plea and the effects of the traumatic braininjury, I reduce that by 20 months, so your end sentence is 36 months, it isthree years' imprisonment.[34] Accordingly, Mr Hales received a discount of approximately 35 percent, takinginto account his guilty plea and the effects of the traumatic brain injury, resulting inan end sentence of 36 months.8 Above n 1, at [30].9 At [39]–[40].Approach to appeal[35] Under s 250(2) of the Criminal Procedure Act 2011, the appeal court mustallow the appeal if satisfied that for any reason, there is an error in the sentenceimposed on conviction, and a different sentence should be imposed. Otherwise, theCourt must dismiss the appeal.[36] Where the appeal court allows the first appeal, the appeal court must, pursuantto s 251:(a) set aside the sentence and impose another sentence (whether more orless severe) that it considers appropriate or,(b) vary the sentence, vary any part of the sentence, or vary any conditionof the sentence; or(c) remit the sentence to the court that imposed it and direct that court totake any action of a kind described in paragraph (a) or (b) as specifiedby the first appeal court.[37] Section 250(2) was not intended to change the previous approach taken by thecourts under the now repealed Summary Proceedings Act which applied where thesentence was "clearly excessive or inadequate or inappropriate.10[38] Further, despite s 250 making no express reference to "manifestly excessive",this principle is "well-engrained" in the court's approach to sentence appeals. Anappeal court will not interfere with the end sentence if the end sentence is withinrange.11 The focus is on the end sentence and not the process adopted to reach that endsentence.10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26] and [27].11 Ripia v R [2011] NZCA 101 at [15].AnalysisStarting point—the offending[39] Mr Bourke submits that the starting point of four and half years' imprisonmentwas outside of the available range and manifestly excessive. Overall, his view was thatthe Judge should have reached a nominal end sentence of two years' imprisonmentand that this should have been converted to home detention. Mr Bourke referred toBloomfield v R, R v H, and R v Johnson.12[40] In R v H the Court of Appeal considered a starting point of four years'imprisonment could be applied for offending under s 134 of the Crimes Act 1961. Thiswas repeated in R v Johnson, where the Court of Appeal considered that a sentence offour years' imprisonment was a useful reference point for s 134 offending where theparticular aggravating factors have resulted in moderate culpability. Again, a startingpoint of four years was applied in Bloomfield v R.[41] In Bloomfield, the defendant had engaged in sexual intercourse with a 14 yearold victim over a period of five months. The offending happened when the defendantvisited the victim's father at his work sites, in semi-rural locations. The victim wasalso being abused by her father. The defendant would separate the victim from herfather for the purpose of facilitating sexual intercourse. A starting point of four yearswas upheld by the Court of Appeal, which referred to the following statement fromR v Johnson:13We consider that the four year starting point in R v H is still a useful referencepoint in relation to sentencing for sexual connection with young persons,where the offending shares features present in that case. Particular aggravatingfeatures in R v H were abuse of trust, a significant age gap between theoffender and the victim, full penetrative sex on a number of occasions, andsignificant adverse effects on the victim. Where aggravating features in R v Hare present, a starting point of four years may be appropriate. Otheraggravating factors not present in R v H may be seen as increasing culpability.Such features could include grooming, or abusive and demeaning behaviour.Where there has been no breach of trust as in R v H but the same aggravatingfeatures are present, a lower starting point will be appropriate. A differentcombination of aggravating and mitigating factors might produce yet another12 Bloomfield v R [2021] NZCA 102; R v H [2008] NZCA 237; and R v Johnson [2010] NZCA 168.13 Bloomfield, above n 12, at [15]; citing R v Johnson [2010] NZCA 168 at [17].result. It follows that the starting point of four years should be seen as no morethan a mid-point in the range of offending where there is moderate culpability.[42] Mr Bourke accepts that the age gap, the nature of the sexual activity, andadverse impact on the victim are properly regarded as aggravating factors of theoffending. He also submits that as to the aggravating factors of the level of grooming,breach of trust, and the finding of demeaning behaviour, the Judge erred by failing totake proper account of Mr Bourke's personal circumstances in his assessment of thosefactors. Mr Bourke says that that to properly evaluate Mr Hales' culpability in theoffending, it is necessary to have a regard to his personal circumstances. He says thatthe significant age gap is tempered by Mr Hales' own psychological functioning andlevel of maturity, as well as the impulsivity identified by Dr Lokesh, followingMr Hales' significant brain injury. Mr Bourke submits that the present case is not of asophisticated older man preying on a young girl, but rather of an immature and braindamaged person operating at a lower level of emotional maturity than his physical age.[43] Mr Bourke submits that the Mr Hales' involvement in the church was simplyhow he met the complainant rather than being a material factor in the development ofthe relationship. He says Mr Hales did not exercise or exert any power or control overthe victim, and nor was this a situation where there was an ongoing pastoral care role.He submits this is reflected in the summary of facts as the relationship developed whileMr Hales was living in the South Island. He similarly disputes the Judge's view thatMr Hales groomed the victim, and that he had engaged in demeaning behaviour. Hesays that this demonstrates the risk the Judge was unconsciously biased by having readthe statements referred to in the beginning of his judgment, despite saying that heplaced no weight upon them and sentenced only on the summary of facts.[44] Mr Bourke also submits that although the Judge said he accepted that Mr Haleswas immature and that his brain injury lessened his self-control, this was not reflectedin the starting point adopted by the Judge.[45] The Crown relies on the same cases as Mr Bourke, and submits that s 134 is aprovision that is designed to protect young people under the age of 16 as they areinherently vulnerable.14 In relation to Mr Hales' traumatic brain injury, counsel for theCrown, Ms Hicklin, further says that a reduction to the starting point is only availablewhere a causative relationship between a disorder and the offending reduces the moralresponsibility of the offender.15 The Crown notes the aggravating factors of theoffending, and says that the offending cannot be described as an impulsive reaction bya brain damaged man. Ms Hicklin submits that the summary of facts does not revealany situations in which Mr Hales would have been stressed and therefore struggled tomake a correct or lawful decision. She submits that there is no indication that his braininjury impacted upon his decision-making at all. Ms Hicklin also highlights theintroduction of drugs into the relationship and says that the court cannot be sure thatif Mr Hales' decision making was impaired, it was not as a result of the drugs that hewilfully consumed.[46] While acknowledging Dr Lokesh's findings, I do not agree with the submissionmade by Mr Bourke that Mr Hales' own mental capacity, wellbeing and maturityseriously ameliorates his culpability when assessing the starting point of the offending.I accept that mental illness is relevant at both the first and second step of the sentencingapproach, where it is shown that mental illness reduces the offender's moralresponsibility.16 However, the Judge accepted that Mr Hales' maturity was a relevantfactor, explicitly taking that into account when that was raised by Mr Bourke in theDistrict Court. As noted by the Judge, this argument would have much more merit ifthe facts involved a one-off episode of sexual connection that could properly beattributed to a momentary lapse of judgement. That is not the situation in the presentcase, which rather concerns a relationship that developed over the period of a year,resulting in a large amount of sexual intercourse, the birth of a child, drug use, andsignificant adverse impacts on the victim.[47] Given the considerable period over which the offending occurred, and thenature of the offending as described in the summary of facts to which Mr Halespleaded guilty, I consider that the Judge did not err in his assessment on this point. Iconsider that this issue is further compounded by Mr Hales' refusal to accept14 Sentencing Act 2002 s 9(1)(g); and R v Johnson, above n 13, at [13].15 Shailer v R [2017] NZCA 38 at [50].16 L (CA719/2017) v R [2019] NZCA 676 at [48]–[50]; and Orchard v R [2019] NZCA 529 at [45]–[46].responsibility for his actions, and claiming that in fact, he was manipulated. It is myview that any causal relationship between his mental state and the offending capableof warranting a discount from the starting point is eroded by the facts of the case, andhis refusal to acknowledge the harm that he has caused.[48] I do not consider that the Judge erred in finding that Mr Hales had groomedthe victim, or that his behaviour had a demeaning effect. I accept the Crown'ssubmissions on these matters. Further, the breach of trust inherent in the offending isnot lessened in its seriousness by the fact that the bulk of the offending occurredoutside of the church context. The meeting between Mr Hales and the victim in thechurch environment provided the opportunity for the offending to occur. Mr Halespursued the victim, and their relationship eventually developed a sexual element,thereby breaching the trust a young person is entitled to have in an adult, bothgenerally, and where a heightened relationship of trust existed because of the churchaspect.[49] Overall, I accept the Crown's and the Judge's summation of the seriousness ofthe offending and Mr Hales' culpability. While the Court of Appeal has indicated thata starting point of four years' imprisonment is appropriate for an offender withmoderate culpability, upon a sentence appeal, in the absence of an identified error asto starting point, the Court is reluctant to intervene. I am unable to describe, in thecircumstances as presented before me, a starting point of four and a half years'imprisonment as unavailable to the Judge. The deviation from the Court of Appeal'ssuggested starting point is minimal, and I consider that it was within range. I noteparticularly the Court of Appeal's comments that the starting point of four years shouldbe seen as no more than a mid-point in the range of offending where there is moderateculpability.17Adjusting the starting point – mitigating factors of the offender[50] Mr Bourke submits that the Judge erred in failing to apply adequate discountsfor personal mitigating factors. Mr Bourke also argued that the Judge made amathematical error equating four and a half years with 56 months, rather than17 R v Johnson, above n 13, at [17].54 months. He says this should be corrected. The Crown accepts that there was amathematical error in the Judge's calculation of the sentence.[51] Mr Bourke further submits that the Judge's overall assessment of the mitigatingfactors was compromised by an excessive focus on the contents of the s 27 report, incircumstances where that report was disclaimed by him, and not relied upon insubmissions. He says that there can be no dispute that Mr Hales suffered a brain injury,and that he is more properly described as someone with memory issues, rather than anoutright liar. Mr Bourke says that the undue focus on the s 27 report meant that theJudge did not adequately consider the issue of Mr Hales' remorse. He submits thatMr Hales entered a guilty plea and that he did not resile from that when given theopportunity, showing that he has accepted responsibility.[52] Mr Bourke submits that the clear evidence of Mr Hales' difficult and abusiveupbringing, indicating a history of trauma, is a mitigating factor that requiresreassessment, as the Judge acknowledged might be necessary. He submits that theevidence of Mr Hales' upbringing and that his cognitive impairments played a'significant role' in his offending is directly relevant to the assessment of hisculpability and warrants a far more generous discount than that allowed by the Judge.He says also that the Judge failed to give any considerations to prospects ofrehabilitation.[53] Given Mr Hales was imprisoned, registration pursuant to the Child Protection(Child Sex Offender Government Agency Registration) Act 2016 automaticallyfollowed. Mr Bourke submits that that the punitive consequences of registration weresomething that should have been taken into account by the sentencing judge.18 He saysthat therefore registration itself also warranted a discrete sentencing discount.Ultimately, Mr Bourke submits that from an adjusted starting point of four years orless, the combination of discounts for guilty plea, remorse, rehabilitation, childhoodtrauma, brain injury, mental health issues, and registration should result in an endsentence of two years' imprisonment or less. He says that then the appropriate sentenceis one of home detention.18 Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [135]–[136]; and Bird vPolice [2017] NZHC 1296.[54] The Crown acknowledges that the evidence provided now establishes thatMr Hales suffered from childhood sexual abuse, which was self-reported prior to thecharges being filed. Ms Hicklin says, however, that the causative effect of this uponthe offending is limited. She submits that Mr Hales has expressed no genuine remorse,having consistently denied the offending and engaged in victim blaming, incontradiction with the summary of facts. Ms Hicklin submits that the guilty plea andeffect of the traumatic brain injury was accounted for in the discount awarded and thatregistration on the Child Sex Offenders Register reflects ongoing risk and should notbe treated as a mitigating factor. The Crown's submission is that the overall discountawarded appropriately recognises Mr Hales' mitigating factors, and that the endsentence was not manifestly excessive.[55] I address first the issue regarding the s 27 report.[56] I agree with the District Court Judge that the s 27 report does not reveal muchthat assists Mr Hales in the sentencing process. It is particularly damning evidence ofMr Hales' refusal to accept responsibility for his actions, and his complete lack ofremorse. In a broader sense, it is these kinds of attitudes which perpetuate a culture inwhich sexual manipulation and abuse of girls and young women is normalised. It isinappropriate for Mr Hales to seek to ameliorate the Courts' view of his culpability byshifting the blame to a young woman half his age, who the law seeks to protect by theage of consent. The position held is entirely at odds with Mr Hales' guilty plea. I agreewith the Judge that without any form of independent verification, the assertions madein the s 27 report are essentially baseless.[57] Mr Hales also refused to accept responsibility for his actions in his discussionswith the PAC report writer and the s 38 report writer, including raising allegations ofa conspiracy against him by the victim's family to the latter. Accordingly, althoughMr Bourke did not rely upon the s 27 report at the sentencing hearing, it is apparent tome that Mr Hales' attitude to the charges against him has been uniform throughout theproceeding, and that his guilty plea represents a strong desire to avoid imprisonment,rather than a fulsome acceptance of responsibility for his offending. That does notchange the fact that he is entitled to a full discount for his plea, but it does mean, inmy view, that any further discount for remorse or rehabilitative prospects isunavailable. Such a discount is only available where in a proper and robust evaluationof all the circumstances, there is evidence of genuine remorse.19 Despite sending aletter to the victim, I do not consider that Mr Hales has demonstrated any genuineremorse.[58] As to rehabilitation, I accept that Dr Lokesh records Mr Hales' willingness toundertake rehabilitation, as well as Mr Hales' engagement in counselling, and theassessment of his future risk of offending as low. However, generally, discounts forrehabilitation or prospects of rehabilitation are given in circumstances where anoffender has already started down that road, of their own volition.20 Further, given thelength of time over which the offending occurred, the nature of the offending, andMr Hales' continued denials of responsibility, I consider that he is required to showreal steps towards rehabilitation to attract a discount on appeal.21 As I consider thatMr Hales has not done so, I am unwilling to provide a further discount forrehabilitation.[59] Turning then to the more general allegations of insufficient discounts formitigating factors. Very recently the Supreme Court in Berkland clarified how s 27reports (and background factors generally) are to be approached in the sentencingexercise.22 While the context of Berkland was commercial methamphetamine dealing,I consider the comments made by the Supreme Court very likely to be of generalapplication.[60] The Supreme Court identified in Berkland that the Courts had not beenapplying a uniform approach to the required degree of connection betweenbackground factors and their mitigatory effect on sentencing.23 For example, in Carrv R, the Court used a "causative contribution" approach, to show that there was norequirement for offenders to establish that deprivation is a 'proximate cause' of the19 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].20 See for example R v Gear [2023] NZHC 432 at [17]-[18].21 R v Toa [2023] NZHC 403 at [10(c)].22 Berkland v R [2022] NZSC 143.23 At [100].offending.24 Other cases have required "a demonstrative nexus"25, or that deprivationbe "an operative cause". The latter is obviously a higher threshold.[61] In deciding that the Carr v R 'causative contribution' approach should prevail,the Supreme Court stated:26Where it can be established that background was an operative or proximatecause of the offending it is likely to be a potent sentencing factor. Proximateafflictions such as addiction or mental illness may be examples. There may beother background factors that invite similar inferences in particular cases. Aswe have said, restrictive rules or heuristics that tend to exclude factors at theoutset without assessing their potential relevance have no place in the makingof factual assessments. They create analytical blind spots.But requiring operative or proximate cause in every case sets the bar too high.We prefer the Carr standard of causative contribution. It captures backgroundfactors that are, as we explain below, the more diffuse drivers or theintergenerational sources of offending; factors that would be excluded asinsufficiently connected under a stricter causation standard. Thesecontributory factors are important because they can provide rationalexplanations for why an offender has come to offend. Contributory mentalillness can still explain why an offender is living in the chaotic or conflictualcircumstances that made the offending more likely. Contributory addiction canhelp to explain why an offender was drawn into the commercial drug dealingenvironment. Contributory deprivation, including that precipitated byhistorical dispossession and sustained by poor educational and otherintergenerational outcomes, can help to explain an offender's limited lifeoptions, poor coping skills or other criminogenic circumstances that made theoffending more likely. Where these factors do help to explain how theoffender came to offend, they will amount to causative contribution andso will be relevant for the purpose of sentencing.(footnotes omitted, emphasis added).[62] However, the contribution of background factors may be displaced whereoffending is particularly serious, or where an offender has exhibited increasedagency.27 The discount range for these factors is wide and largely fact dependent,although the Court of Appeal has acknowledged that a discount of 30 per cent is at theupper end of the spectrum.2824 Carr v R [2020] NZCA 357 at [64]–[65] and [71].25 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [162].26 Above n 19, at [108]–[109].27 Above n 19, at [111].28 King v R [2020] NZCA 446 at [28].[63] While my view is that the ultimate end sentence of three years' imprisonmentwas well within range for the offending, I also consider that the Judge did not providesufficient discounts for personal factors which appear to me to be established on theevidence and which help to explain Mr Hales' offending. These factors includesignificant childhood trauma, his traumatic brain injury, and his recorded and ongoingmental health issues. These matters are addressed in pre-sentence reports other thanthe problematic s 27 report. The Judge took a dim view of the assertion that Mr Haleshad been sexually abused as a child, which was made in the s 27 report. His Honourappeared only to allow a discount based on Mr Hales' traumatic brain injury.[64] It seems to me that the Judge's understandable frustration with the s 27 reporthas resulted in the omission of the noted factors, which logically help explain theoffending. As noted by the Supreme Court, contributory mental illness can still explainwhy an offender is living in the chaotic or conflictual circumstances that made theoffending more likely. Childhood trauma and poor educational outcomes do the same.The Crown accepts that the sexual abuse suffered by Mr Hales as a child is established.There is also a recorded link between traumatic brain injuries and criminal offending.While these factors are not considerations that lead me to a conclusion that Mr Hales'culpability was of the nature as advocated for by Mr Bourke, they are personal factorsthat were required to be properly taken into account at the second step of thesentencing process by the Judge. I do not, however, consider that the Judge erred innot considering the effect of registration on the Child Sex Offenders Register as amitigating factor.29[65] As such, in the circumstances, I consider that personal mitigating factorsjustified a 20 per cent discount, rather than the approximately 10 per cent imposed bythe Judge. It follows also that as I propose to recalculate Mr Hales' sentence, I willalso correct the apparent mathematical error in the Judge's calculation of the sentence,by the use of a figure of 54 months (four and a half years), rather than 56 months.29 The punitive effect of registration may be a factor relevant to the type of sentence imposed, but itis not a mitigating factor informing the length of sentence: Hughes v R [2022] 2835 at [40].Conclusion[66] From a starting point of four and a half years' imprisonment (54 months), Ideduct 25 per cent for Mr Hales' guilty plea and a further 20 percent for recognitionof personal factors including his childhood trauma, traumatic brain injury and recordedmental health issues. That results in an end sentence of 30 months imprisonment(rounded up from 29.7 months), or of two and a half years' imprisonment.Accordingly, home detention is not an available option.[67] I consider that an end sentence of two and a half years' imprisonment is theleast restrictive outcome in the circumstances. While a sentence of home detentionmay be appropriate in some circumstances of sexual offending against a child, and itis not strictly necessary for me to come to the following conclusion, I am satisfied thata sentence of imprisonment is necessary in the circumstances for the purposes ofsentencing contained in ss 7 and 8 of the Sentencing Act 2002 to be given effect.Result[68] Appeal allowed. I sentence Mr Hales to two and a half years' imprisonment.McQueen JSolicitors:Crown Solicitor, New Plymouth for Respondent