HARAWIRA v R [2019] NZCA 562

HARAWIRA v R [2019] NZCA 562 [15 November 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 AOTEAROACA68/2019[2019] NZCA 562BETWEEN KEITH MANUAO HARAWIRAAppellantAND THE QUEENRespondentHearing: 5 September 2019Court: Kós P, Duffy and Woolford JJCounsel: G R Tomlinson for AppellantE J Hoskin for RespondentJudgment: 15 November 2019 at 9 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Duffy J)[1] After the jury in the first trial of the appellant, Keith Harawira, were unable toreach verdicts on charges of sexual violation by rape, sexual violation by unlawfulsexual connection (digital penetration), attempted rape and attempted sexual violationby unlawful sexual connection (attempt to insert his penis into the mouth ofthe complainant), Mr Harawira was re-tried before a judge and jury on the samecharges. On this occasion he was acquitted of the rape charge, but found guilty on allother charges, following which he was convicted and sentenced to four and a halfyears' imprisonment.1 He appeals against his convictions and sentence.Appeal against convictionFacts[2] The Crown case was as follows. In May 2016 the 18-year-old complainant,who is related to Mr Harawira, was home alone. She heard him enter the house.She was accustomed to this because he often came over to use her mother's Wi-Fi.The mother gave evidence which described the relationships within the whānau toinclude them living within easy distance of each other (they live in a provincial townin New Zealand) and as following the Māori custom of sharing their respective homeswith other members of the whānau and friends, who are welcome to enter and makethemselves at home including taking food from the fridge and using the Wi-Fi.[3] In her evidential interview and in evidence the complainant said she was awarethat Mr Harawira came to her home to access pornography via the internet. She saidhe watched pornography while in her home on more than one occasion. Mr Harawiraaccepted he used the Wi-Fi at the house to access pornography, but only from outsidethe house. The complainant's mother gave evidence the Wi-Fi could be accessed fromthe road, and that whānau and friends used it in this way.[4] On the day of the incident the complainant was lying on a mattress in herbedroom, which was on the upper level of the house. She said Mr Harawira enteredher room with his cell phone in his hand. He locked the bedroom door and then cameand lay down on top of her on the mattress. At some time, the cell phone was placedon the floor by the mattress. The complainant she said she could hear sounds ofa female moaning coming from the cell phone which she associated with apornographic film.1 R v Harawira [2019] NZDC 2333 [Sentencing notes].[5] The sentencing Judge described what happened next as follows:2You said something like, "This will be our little secret". You approached herby sitting on her bed, lying on top of her and forcing her onto her back as shestruggled and tried to escape. She was unable to do so, but protested at whatyou were doing. You pulled her top up. She resisted. You then pulled downher tights and underwear so that they were near her ankles and then used oneof your hands to rub inside her genitalia. You then pulled your erect penisfrom your pants and attempted to insert that into her vagina, but were unableto complete that because of her struggling. Then you straddled her midriff,grabbed her hair and made a series of efforts to place your penis in her mouth,which she also resisted. You eventually ceased your efforts and left thebedroom.[6] Mr Harawira denied entering the complainant's room and acting in the way shedescribed.Trial and associated rulings[7] At the first trial the defence was permitted to lead evidence aboutthe complainant that was excluded by the second trial Judge. Mr Harawira contendsthat the exclusion of this evidence has led to a miscarriage of justice by adverselyaffecting the presentation of his defence, and resulting in the jury reaching incorrectguilty verdicts on three of the charges.[8] Mr Harawira has sought to contrast the way he was permitted to run the defencecase at the first trial with the effect of not being able to run his defence in the sameway at the second trial. This is the wrong approach to take. The key issue is whetherJudge Harding, who presided over the second trial, incorrectly ruled that certaindefence evidence should be excluded, and if he did whether this has resulted ina miscarriage of justice.[9] The excluded evidence was dealt with in a series of rulings by Judge Harding,the first of which (Ruling No 2) covered four matters:3(a) online conduct, termed "catfishing", which the complainant hadengaged in with four school friends four years before the incident;2 At [2].3 R v Harawira [2018] NZDC 27489 (Ruling No 2).(b) posting false information on the internet that her father had died, whenhe had not;(c) threatening her mother with a knife; and(d) evidence of the complainant being manipulative and unkind to hermother.[10] In Ruling No 2 Judge Harding permitted the defence to call evidence ofthe complainant making a false internet post wrongly stating her father was dead.The Judge considered this evidence was relevant to the complainant's veracity. It alsofollowed that the defence was permitted to cross-examine on this topic.4[11] However, when the complainant was asked about falsely posting that her fatherwas dead and she was suicidal, she denied doing so. The defence witness who wasthought to have knowledge of the complainant making the false post admitted inevidence that she had not seen the post herself, but instead had been told about it byanother defence witness, who by then had already given evidence and had notmentioned the false posting. The transcript records the Judge addressing defencecounsel stating the evidence from the witness was hearsay and not admissible.5Accordingly, the only evidence to contradict the complainant's denial was asecond-hand account from the defence witness.6 Neither the Judge nor the Crowncommented later to the jury on this evidence.[12] Regarding the other three topics the Judge refused to permit the defence to callevidence on those topics and to cover them in cross-examination of the complainant.4 At [6]–[7].5 Technically the evidence was not hearsay because the person who told the witness about the falseposting was also a defence witness: see the definition of "hearsay" in s 4 of the Evidence Act 2006.However, because of the order in which the evidence was given she could not be questioned aboutthis topic and there was no application to recall her.6 There does not appear to have been a formal ruling excluding the evidence on the ground it washearsay, although the transcript record suggests that may have occurred.The reasons given for this ruling were:[2] There were four matters. The first is an incident involving somethingcalled "catfishing" which is essentially an allegation that a person or personshave pretended to be somebody else in digital media with adverse effects toothers. The defence suggestion is that she was involved in that and that is anindication she is manipulative and is prepared to stick to dishonesty.The ruling made [at the first trial] was that that was permitted.[3] As the evidence came out the [complainant] explained that, yes, shewas involved in that, but that she was part of a group and that she did so inorder to be part of the group and that had she not she would not have hadfriends. There was no defence to counter that explanation.[4] Although there is some highly peripheral relevance in that, in contextI do not consider it is evidence which should be led in front of this jury at thistime because of the context which turned up in evidence at the last trial whichMr Tomlinson could not have known about when the application was made.This jury is in a different position in that there is material known to counsel,and now to me, from the last trial which could not have been known in advancethen.[5] I do not consider that the inclusion of that evidence would have anunfairly prejudicial effect, but I do consider it would needlessly prolongthe proceeding. That line of cross-examination is not properly, in my view,able to be advanced.[8] The third matter advanced by Mr Tomlinson is a desire to cross-examineas to threatening her mother with a knife. On the basis of the evidence whichcame out at the last trial he accepts that is not a matter which can usefully beadvanced because there was not, in the end, adequate evidence that hadoccurred.[9] The final matter which Mr Tomlinson wishes to advance is that she ismanipulative and unkind to her mother. The defence position in the trial isthat the complaint of sexual offending is entirely made up and the explanationfor the delay variously put as not wanting to upset her mother or not wantingto cause a split in the family is not true. In support of that Mr Tomlinsonsubmits that evidence that she has been manipulative to her mother ought tobe admitted. But the evidence which came out at the last trial does not supportthe suggestion that she was manipulative. In the circumstances there is not asufficient factual basis to put that at this stage and that may not be approachedin that way. [13] In Ruling No 3 the Judge ruled that the defence could cross-examinethe complainant to the effect she had claimed insurance for the theft of a drone butlater described the drone or a similarly described drone on her Facebook page as beingfor sale.7[14] In Ruling No 4 the Judge dealt with another request from the defence tocross-examine the complainant and to lead defence evidence on a further instance ofdeceptive conduct on the part of the complainant:8[1] Mr Tomlinson then raises an intention to cross-examinethe complainant about what he says is another instance of deceptive conduct.[2] The complainant's Aunty [X] is apparently able to say that thecomplainant tricked her into signing a consent for a belly-button piercingwhen she was aged 15 effectively representing that her mother, that is to saythe complainant's mother, had agreed.[3] The Crown submits that in terms of s 37 [of the Evidence Act 2006],and in particular s 37(3), the evidence does not tend to show any one or moreof the matters set out. It is not a lack of veracity on the part of a person whenunder a legal obligation to tell the truth in terms of the examples provided inthe section. There is no suggestion of prior convictions. It is not a previousinconsistent statement. It is not bias and it may be a motive on behalf ofthe complainant to be untruthful, but if it is it is a motive in the context of ayoungish teenage girl trying to get a belly-button piercing rather than a muchmore serious issue before the jury.[4] In those circumstances I do not consider that it is substantially helpfuland it is not to be proceeded with.[15] In Ruling No 8 the Judge dealt with the defence request to call up to12 witnesses to give evidence about the bad relationship between the complainant andher mother. Six of those witnesses had given evidence at the first trial. It was saidthese witnesses would describe how the complainant called her mother names,belittled her and demanded money from her. The reason given by the defence forcalling this evidence was that it countered the complainant's evidence that part of hermotivation for not complaining earlier than she did was to protect her mother from theknowledge Mr Harawira had sexually abused her. The request was refused becausethe Judge could see no logical link between the proposed evidence and the defencecase that the complaints were fabricated, nor could this evidence establish a motivefor the complainant to lie.97 R v Harawira [2018] NZDC 24764 (Ruling No 3).8 R v Harawira [2018] NZDC 27465 (Ruling No 4).9 R v Harawira [2019] NZDC 7738 (Ruling No 8) at [6]–[8].[16] It is apparent from the various rulings that the defence advanced its argumentsfor the admission of the excluded evidence on a piecemeal basis that relied on bothveracity and propensity, with the emphasis being more on veracity than propensity.[17] On appeal, Mr Harawira has similarly approached the evidence that he argueswas wrongly excluded. However, he confined his submissions to challenging thefollowing exclusions of evidence: catfishing (Ruling No 2); being manipulative andunkind to her mother and threatening her mother and brother with a knife(Ruling No 2); evidence of the complainant's poor relationship with her mother(Rulings No 2 and 8); and evidence the complainant had misled her aunt to giveconsent for a belly button piercing (Ruling No 4).Catfishing evidence[18] "Catfishing" is, in colloquial terms, pretending, usually online and in aromantic context, to be a person you are not. The incident occurred in 2012.The complainant and four other girls used a social media account to pretend to bea boy, and misled a young girl, who was known to the complainant and her whānau,into thinking the boy was interested in her. When confronted the complainant admittedher involvement.[19] The Judge ruled this evidence inadmissible. He considered the evidence had"some highly peripheral relevance", not outweighed by unfair prejudice, but that itwould needlessly prolong the proceeding.10[20] The ruling shows the Judge was influenced by the complainant's explanationat the first trial for participating in this conduct. He referred to the complainant'sexplanation and said the defence had nothing to counter it.11 However, what effectthe complainant's explanation might have on the evidence was a matter for the jury toassess.[21] Mr Harawira contends that the catfishing evidence was substantially helpful todetermining the complainant's propensity to be manipulative, as it shows10 Ruling No 2, above n 3, at [4]–[5].11 At [3].the manipulation of the young girl. However, it is hard to see how the catfishingepisode can be characterised as propensity evidence that shows a tendency to bemanipulative. The type of interaction involved in the catfishing episode is quitedifferent from making a false complaint of serious sexual assaults. The latter is notusually associated with manipulation unless it is done for an ulterior purpose toachieve an outcome. Here, there is no evidence to suggest the complainant had sucha purpose nor did the defence attempt to advance there was any such purpose.[22] This evidence is better considered as veracity rather than propensityevidence.12 Veracity is defined as "the disposition of a person to refrain from lying",whether generally or in the proceeding.13 If so, it must be "substantially helpful inassessing that person's veracity".14 This is a higher threshold than "mere relevance".15[23] When looked at as veracity evidence the real relevance of the catfishing is low.The incident occurred in 2012, which was a time when the complainant was a youngteenage schoolgirl. The complaint against Mr Harawira was made in late 2016 andthe second trial was in late 2018, by which time the complainant was 20 years old.Such evidence is old and of marginal relevance only. Accordingly, one can be scepticalabout how much the catfishing incident reflects on the complainant's veracity. We aresatisfied the evidence does not meet the requirements for admission of veracityevidence.16[24] The Judge determined that the catfishing evidence would needlessly prolongthe proceeding.17 Whilst we would have excluded it for different reasons the outcomewould still be the same.12 Similar evidence of creating a false social media profile was classified as veracity evidence inG (CA50/2018) v R [2018] NZCA 584 at [17(b)].13 Evidence Act, s 37(5).14 Section 37(1).15 R v Smith [2007] NZCA 400 at [16].16 See above at [22].17 Evidence Act, s 8(1)(b). This remains applicable to veracity evidence: Chown v R [2011] NZCA453 at [40].Threat with knife and bad relationship with mother[25] At the first trial, an allegation that the complainant threatened her mother andher brother with a knife was ruled admissible by Judge Ingram.18 The followingevidence was given:Q: And in fact you previously armed yourself and threatened her with aknife haven't you?A: Not him, no.Q: No, but Mum?A: YesQ: What was it about?A: That was about me going to school.Q: Oh, and not wanting to go to school?A: YesQ: Right. And not getting your way?A: Well I was getting bullied, how would you feel?[26] Under re-examination the complainant clarified that she was in her room, andsaid she was "literally sitting on my bed telling everyone to go away, like I just wantedto be alone", and denied using the knife to threaten anyone. Her mother and a defencewitness both also accepted the complainant neither threatened nor confronted hermother with the knife.[27] Mr Harawira contends that a consequence of a fresh trial is that witnesses giveevidence again, and so the evidence may come out differently. This seems to be, atleast implicitly, an argument that if the "knife" evidence had been adduced atthe second trial it may have come out more strongly for the defence than it did atthe first trial, which we find to be speculative.18 R v Harawira [2018] NZDC 10200 (Ruling of Judge Ingram) at [10].[28] Mr Harawira also contends that the "knife" evidence was given at the first trial,in which some of the jurors obviously had doubts about Mr Harawira's guilt.However, it does not logically follow that the hung verdicts in the first trial were dueto the "knife" evidence. There is nothing in this argument.[29] Further, Mr Harawira contends that he was able to obtain four further witnesseswho could have given evidence in relation to the complainant being manipulativetowards her mother and a further eyewitness to the complainant threatening her brotherand mother with a knife. However, Mr Harawira has not identified how the tendencyto manipulate, which he says is apparent from this evidence, suggests the sexualassault complaints may be false. That is the major problem with this evidence.General evidence of misbehaviour by a complainant on another occasion, ifestablished, is not relevantly probative of falsity in her allegations againstMr Harawira. It fails at the most basic admissibility level under s 7 ofthe Evidence Act.Unkindness towards mother[30] At the retrial Mr Harawira made two attempts to adduce evidence that showedthe relationship between the complainant and her mother was troubled and thatthe complainant behaved badly towards her mother on numerous occasions, includingby acting in a manner that was manipulative and unkind. Part of the reason foradducing this evidence was to counter the complainant's explanation that she haddelayed complaining about the sexual assaults because she had wanted to protect hermother from knowledge of Mr Harawira's misconduct, and to avoid the division suchknowledge was likely to cause within the whānau once it became known.[31] The issue was first raised as one of the topics covered by Ruling No 2. At thattime the Judge refused to admit the proposed evidence because he considered it didnot support the complainant having a propensity to be manipulative. The Judge foundthe evidence at the first trial did not support such a tendency, therefore, there was nobasis on which to put the allegations to the complainant.1919 Ruling No 2, above n 3, at [9].[32] Before the proposed evidence could be adduced as propensity evidencethe Judge had to be satisfied it went to prove a tendency on the part of the complainantthat was relevant to the matters in issue at trial. He did not consider the evidencepassed this threshold.[33] Later in the trial Mr Harawira essentially sought to revisit calling evidenceabout the relationship between the complainant and her mother as propensity evidence.At this time, he sought to call evidence from 12 witnesses about the quality ofthe relationship between the complainant and her mother. Once again, the defencecase here was that the relationship between the complainant and her mother was bad,and the complainant was manipulative and unkind to her mother.Hence, the complainant would not have held back from complaining aboutMr Harawira simply to protect her mother from the fallout the complaint wouldgenerate or any division it might cause within the whānau.[34] On this occasion, in Ruling No 8, the Judge dealt with the request to callthe evidence more substantially:[1] Mr Tomlinson raises in the absence of the jury his desire to call up to12 witnesses to give evidence essentially of the relationship betweenthe complainant and her mother. He explains that the witnesses, some six ofwhom apparently gave evidence at the last trial, will say the complainantswore at her mother, called her names, belittled her, demanded money and thelike.[2] Mr Tomlinson says that such evidence counters the complainant'sevidence that part of her motivation for not wanting to tell anybody about whathappened was to protect her mother, I infer, from the knowledge that [Y] hadsexually abused [Z].[3] The Crown submits that the evidence is irrelevant, that it willunnecessarily prolong the trial and that there is no proper connection betweenthe sort of evidence desired to be called by Mr Tomlinson andthe complainant's proposition.[4] Mr Tomlinson does not advance the application on the basis that itmaterially assists with veracity, but rather on the broader basis, the inversefrom time to time advanced by the prosecution, that the family backgroundand circumstances are relevant and part of the overall picture.[6] I am unable to discern a logical link between evidence thatthe complainant may from time to time or indeed has from time to time swornat her mother, called her names, belittled her, demanded money and generallybehaved badly and her wishing to protect her mother from knowledge whichwould undoubtedly upset her. I am unable to discern an inconsistencybetween a complainant not wishing her mother to have that knowledge and acomplainant who from time to time has other even significant issues with hermother. It does not go to a motive to be untruthful in terms of s 37(3)(e)[of the] Evidence Act. The other provisions of s 37(3) if that section isengaged at all do not appear to be relevant.[7] On the other hand, the admissibility or the calling of up to a dozenwitnesses on those sorts of issues will, in my view, needlessly prolong theproceeding without providing probative value which outweighs that risk.The probative value is extremely slim. It will undoubtedly needlessly prolongthe proceeding and even if the evidence was given it does not, in my view,form a platform for the defence to say because the complainant did these sortsof things she cannot have had, as part of her motive for delay, a wish to protecther mother.[35] On appeal Mr Harawira argues the evidence shows the complainant to bemanipulative and to be different from the persona she presented at the evidentialinterview and when she gave evidence at trial. All of which shows a propensity tomanipulate others.[36] Mr Harawira also relies on the reasons Judge Ingram gave for allowingthe proposed evidence to be adduced at the first trial. These were essentially thatthe proposed evidence relating to catfishing, evidence of being unkind andmanipulative to her mother and brother, and the untruthful Facebook post of herfather's death, were substantially helpful from the point of assessing an overallpropensity to be manipulative. Whether this evidence was admitted as propensity orveracity evidence Judge Ingram considered its probative value outweighed anyprejudicial effect, because it went to show the complainant "should not be believedwhen she makes a serious allegation many months after the event in circumstanceswhere she has acted at least in a deceitful way on other occasions beforehand".20[37] We have had the benefit of reading the evidential statements the privateinvestigator prepared for the defence before the second trial. They provide the mostcomprehensive account of the proposed evidence; albeit in a raw form that includesinadmissible statements of opinion and hearsay, which we have put to the side.20 Ruling of Judge Ingram, above n 18, at [11].The behaviours described in those statements bear no relation to the type of behaviourthat might underlie making false complaints of sexual assault against someone,particularly a known relative who is generally portrayed in the defence evidentialstatements as likeable and helpful to his whānau, including the complainant. Nor doesthe impression conveyed by those statements logically undermine the complainant'sexplanation for the delay in making the complaints.[38] Like Judge Harding we cannot see a logical link between the proposedevidence and its intended use by Mr Harawira. It again fails on a relevance basis tobe admissible. Accordingly, we consider the Judge was right to exclude this evidence.Belly button piercing[39] The defence sought to adduce evidence that the complainant had told her auntthat her mother consented to her getting a belly button piercing. The complainant was15 years old at the time.[40] The Judge approached this evidence as veracity evidence and essentially foundit did not meet the requirements for the admission of such evidence.21 We consider hewas right.[41] The Crown refers to R v Alletson.22 That case involved alleged lies by a child.This Court endorsed the comments of the trial Judge that the veracity test was notmade out:23We see no error in the Judge's assessment of the evidence of what wererelatively trivial incidents and the unlikelihood that, even if A had lied aboutthe actions of the appellant, his friends and his sister, this showed some kindof predisposition to make false allegations of sexual offending on the part ofthe appellant which would call into question the veracity of the allegationsmade by A in the present case. We accept they may have some relevance tothe assessment of A's veracity. But we are clear that the substantial helpfulnesstest was not met.[42] In the present case, the lie allegedly told is both trivial and old. The Crownsubmits that to consider a lie of this nature as "substantially helpful" would be to lower21 See above at [22].22 R v Alletson [2009] NZCA 205.23 At [25].the threshold and invite the admission of such evidence on a routine basis. The Crownsubmits that it is virtually inconceivable to imagine a teenage complainant who hasnot, at some time and in some context, told a lie, irrespective of its subject matter andgravity. When viewed as potential veracity evidence the arguments the Crown putsup are unassailable.[43] On appeal, Mr Harawira sought to argue the evidence relating tothe belly button piercing was propensity evidence that showed a tendency on the partof the complainant to manipulate others. As with the catfishing incident, we thinkthe evidence is better viewed as veracity evidence. However, even if we accepted itcould be regarded as propensity evidence, we see no connection betweenthe manipulative tendency it may disclose and the making of false complaints ofsexual assault. In the case of the piercing there is a logical connection betweenthe "manipulation" of the aunt to obtain her consent and the outcome that achieved.Here, Mr Harawira invites us to infer that the complainant has a general tendency tomanipulate others, which explains her making a false complaint against him.However, he does not outline how this general tendency might have led to falsecomplaints against him, nor are we able to discern it for ourselves.Risk of miscarriage[44] The Crown submits that even if the proposed evidence was excluded in error,this would be incapable of founding a miscarriage of justice because the exclusion didnot hamper Mr Harawira's ability to present his defence, which was that the allegationswere untrue and fabricated by someone who has a history of making false statements.The thrust of this defence was put to the complainant at trial. She was cross-examinedalong the lines she had made the complaint up to get attention, that she had falselyreported a drone as stolen and then subsequently sold it, and that she had falselyclaimed on Facebook that her father had died.[45] The Crown submits that in such circumstances the inability to put tothe complainant whether as a young teenager she had ever bullied a schoolmate online,been rude to her mother, threatened her mother with a knife, or lied to get a belly buttonpiercing did not compromise Mr Harawira's defence. We accept the Crown'ssubmissions.[46] Moreover, Mr Harawira has drawn no connection between the excludedevidence on which he has chosen to focus on in the appeal and how it could have beenused to undermine the Crown case or to present the jury with a defence that they mighthave found reasonably possible to accept. Without him doing that there is no basis forfinding the exclusion of the evidence has led to a miscarriage of justice.[47] In any event, for the reasons we have already given, we consider the proposedevidence was properly excluded.[48] We observe that the complainant gave a strong unshakeable account ofthe offending. Her account was backed up by other evidence. For example, the factthat police found evidence of Mr Harawira having viewed pornographic films on hiscell phone. Her mother gave evidence, with the benefit of hindsight, about noticing achange in the complainant's attitude towards Mr Harawira, and she described thoseoccasions.[49] This was a case where the jury could reasonably be expected to acceptthe Crown case. The fact another jury at the first trial could not reach a verdict castsno doubt on the reasonableness or strength of the verdicts reached in the second trial.[50] It follows that the appeal against conviction is dismissed.Appeal against sentence[51] We consider the starting point the sentencing Judge adopted and the endsentence reached were well within the range of sentences for this type of offending.[52] The Judge treated the offending as one single incident. He did not considerthe offending involved any significant premeditation. He noted that despiteMr Harawira going into the house and into the complainant's bedroom, he did notconsider it should count as an aggravating factor. However, he noted the "very clearbreach of trust". He also noted that there was a "degree of violence",as the complainant struggled and protested against his actions. He likewise consideredthe complainant was somewhat vulnerable, as the offending occurred when she was18 years old. The Judge considered that the complainant suffered significant harm.24[53] The Judge considered the offending fell within band two of R v AM(CA27/2009),25 with two or three aggravating factors being present. He sawthe offending as being similar to that in Pesefea v R,26 whilst at the same timerecognising that the complainant in Pesefea v R was younger than the complainanthere. This led the Judge to adopt a five year starting point. The only discount givenwas six months for a lack of previous convictions and previous good character.27[54] There is no guideline judgment for attempted rape, as this Court recognised inBowman v R:28[T]here is no guideline judgment for attempted rape "although the culpabilityassessment factors and banding in R v AM are still relevant and should beused". The comparison should be with rape band one in R v AM, withsentencing starting points in the range six to eight years imprisonment.The Judge was justified in observing this case instances the fine line that mayexist between an attempt and the completed act.[55] Mr Harawira contends there was only one culpability factor for the purposesof R v AM (CA27/2009), namely that of breach of trust, and that the other factors towhich the Judge referred were identified in error or exaggerated. In relation toviolence, Mr Harawira argues there was no violence other than that which is inherentin the offences. In particular, he relies on R v AM (CA27/2009):[38] There is violence inherent in any act of sexual violation. There willusually be some associated violence, for example, pushing or pulling a victimto the ground and holding him or her down. Where the associated violence ismore than mild, this is another factor which increases culpability. Further, itis necessary to assess the seriousness of the overall level of violence, whetherinherent in the act of sexual violation or associated with it. The more seriousthe overall level of violence, the more serious the offending.24 Sentencing notes, above n 1, at [2] and [8].25 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.26 Pesefea v R [2016] NZCA 35.27 Sentencing notes, above n 1, at [9]–[10]. Mr Harawira has two prior convictions, but they arecompletely unrelated and were over 30 years ago.28 Bowman v R [2014] NZCA 92 at [17] (footnotes omitted).[56] We disagree. Mr Harawira pulled the complainant's hair, and he used hisweight to pin her down. Those acts are additional to the inherent violence in sexualassaults.[57] Mr Harawira contends that the vulnerability of the complainant was"significantly overplayed". He suggests that she was a "strongly built, fit, healthy,sober, 18-year old woman", and had the offending been the other way around,the argument would have been that the defendant was the vulnerable one.We disagree. The very fact that Mr Harawira was able to restrain the complainant,undress her and digitally penetrate her suggests that he was stronger than her.Further, he overpowered her while she was in a vulnerable position lying down onthe floor of her bedroom, which would have made it more difficult for her to physicallyresist him.29[58] We consider the comparison with Pesefea v R to be apt. In Pesefea v R,the offender was found guilty of one count of attempted sexual violation. In that casethe complainant was 14 years old. She had been staying at the offender's house.He arranged to be home alone with the complainant, having sent his son andthe complainant's brother away. The offender approached the complainant frombehind and began hugging and kissing her. Despite her protests, he forced her into hisbedroom and pinned her down on his bed. He unsuccessfully attempted to remove hershorts, and instead undid the zipper and inserted his penis through her outer clothing.He was unable to penetrate her due to her underwear. He lay on top of her, simulatingsexual intercourse until he ejaculated on her. The Judge in that case adopted a startingpoint of six years' imprisonment, considering the aggravating factors to bethe complainant's age, vulnerability, exploitation of trust, harm, actions followingpenetration and premeditation. This Court considered the starting point of six yearswas not "out of line".30[59] We consider the starting point of five years' imprisonment adopted here cannotbe impugned. Whilst the complainant in Pesefea v R was younger, elements of29 The evidence was that the complainant slept on a mattress placed on the floor of her bedroom,which is where she was lying when Mr Harawira entered the room.30 Pesefea v R, above n 26, at [11].Mr Harawira's offending indicate that the comparison is apt, and in some ways hisoffending was more serious. Mr Harawira's offending involved an element of violencebeyond that of Mr Pesefea; because here the complainant's hair was pulled.Also, the offending was prolonged. There was digital penetration, and afterattempting to penetrate her genitalia with his penis, Mr Harawira attempted to inserthis penis into her mouth. We consider that when compared with Pesefea v R,a five year starting point is well within the range. It follows that the appeal againstsentence is also dismissed.Result[60] The appeal against conviction is dismissed.[61] The appeal against sentence is dismissed.Solicitors:Gowing & Co Lawyers Ltd, Whakatāne for AppellantCrown Law Office, Wellington for Respondent