L (CA564/2022) v R [2023] NZCA 144

L (CA564/2022) v R [2023] NZCA 144 [4 May 2023]NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) ORIDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) ORIDENTIFYING PARTICULARS OF ANY COMPLAINANT(S)/ PERSON(S)UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [ORNAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA564/2022[2023] NZCA 144BETWEEN L (CA564/2022)AppellantAND THE KINGRespondentHearing: 29 March 2023Court: French, Dunningham and Cull JJCounsel: J E L Carruthers for AppellantH Steele and J Lee for RespondentJudgment: 4 May 2023 at 11.30 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] L was convicted of sexual offending against his 15 year old niece following ajury trial in the District Court. Judge Bonnar KC presided over the trial and sentencedL to a term of imprisonment of 21 months.1[2] L now appeals his convictions and sentence.Background[3] L and the complainant's father were brothers. L was close to all his nieces andnephews but according to the Crown witnesses, he had a special bond with thecomplainant whom we shall call J. She looked up to him as a father figure, havingfallen out with her own father. In evidence, she said that L would do anything for her.[4] One Friday in either August or September 2019, L who was aged 32, texted Jto see if she wanted to come over for a sleepover and watch movies at his new house.They had been texting each other all day. The invitation was also extended to J's olderbrother but he already had other plans. L picked J up from her home and drove to hishouse.[5] At the time L's partner had recently left him taking their young son with her.L was very upset and depressed as a result and during the evening talked with J abouthow he was struggling with the situation. That was not unusual as L and J oftenconfided in each other and at around 7 pm J texted her mother to get permission to talkto L about the breakdown of her parents' marriage.[6] There were two pull out couches in the room where they were watching themovies. L chose to sleep on the same one as J. She fell asleep at about 10 pm.[7] J's evidence as to what happened next was as follows.[8] Three or so hours later at around 1 am she woke up to hear L talking about hisex-partner. She was unsure whether he was talking to himself or to her. L then asked1 R v [L] [2022] NZDC 18248 [Sentencing notes].her for a hug which she gave him. She thought nothing of this but became scaredwhen after saying "what if I kissed you", he got on top of her and pushed her legs openwith his hands and positioned himself between them. He kissed her on the lips puttinghis tongue into his mouth. At the same time, L began to grind his groin into J, "dryhump[ing]" her. Through her tights, she could feel his penis on her vagina.[9] She froze and didn't say anything. L then grabbed her bottom and thighs withhis hands, saying she had a "big fat bum" and that she was "so naughty." He alsocalled her "baby".[10] Shortly thereafter, he left the room. In his absence, J texted both her brotherand her mother asking them to come and pick her up but despite sending severalmessages did not receive any response.[11] J then tried to sleep to make the time go faster before she could get home butwas woken again by L returning to the room, she estimated at about 5 am.[12] He asked her what she thought about last night and asked her to turn around.He then grabbed her leg to move her closer to him and put her leg over his stomach.J turned her face into the pillow to avoid having to look at L. He put his hands intoher tights and grabbed her bottom. He again grinded on her before pulling his pantsdown, grabbing her hand and forcing her to hold his penis. He then made hermasturbate him with her hand until he ejaculated.[13] J quickly moved her hand away to avoid touching his ejaculate although shedid have some on her hand. He told her she was a "naughty girl" and again called her"baby." He also asked questions of a sexual nature such as inquiring whether she wasa virgin and had she ever masturbated or ever tasted penis. J did not respond.[14] L then tried to touch J's vagina but she told him she had her period (which wastrue) and he stopped. He later asked how old she was and when she said she was 15,he said that if she told anyone he would go to jail and then his son would not be ableto see him. She agreed not to say anything.[15] Desperate to leave, J again messaged her mother and brother. Finally hermother phoned asking what was wrong. J told her to lie and say she needed her tocome home which was then relayed to L who drove J home.[16] On the way to her home, he again said that if she told anyone he would go tojail. He also told her she must not act differently if both of them were around family.Otherwise, it would attract suspicion.[17] Once back home, J had a long shower and in response to questions from hermother said she was okay.[18] After the movie night, communications between J and L largely ceased. It wascommon ground they only ever saw each other once again at a family funeral.[19] J did not tell anyone about the incident until a year later in September 2020when she disclosed the alleged offending to her mother.[20] As a result of the disclosure, the police became involved and inSeptember 2020 J gave an evidential video interview.[21] In December 2020, L was arrested and interviewed by the police. Heremembered the movie night and that he and J had slept on the same couch but deniedthat anything of a sexual nature had happened.[22] L was charged with five charges of indecent acts with a young person underthe age of 16 years. He pleaded not guilty to all charges.[23] At the trial, the Crown acknowledged its case depended entirely on J'scredibility.[24] The trial lasted four days. In addition to J, the Crown called evidence from J'smother and J's two siblings as well as a school friend of J and the arresting policeofficer.22 J's brother gave evidence that he received text messages from J at around 1 am. He ignored thefirst few and replied to one telling her that he would pick her up in the morning.[25] In his opening, trial counsel told the jury that L had no idea why J had madeup these allegations. All he knew was that he had not done it. L gave evidence. Hemaintained his denial of any wrongdoing.[26] The jury found him guilty of all five charges.The appeal against conviction[27] On appeal, Mr Carruthers submitted on behalf of L that during the course ofthe short trial there was "an accumulation of unfair prejudice". This was due, in hissubmission, to three separate errors. The appeal did not turn on any one of the errorsbut rather it was the combined effect of them that had led to a miscarriage of justice.[28] The three errors alleged are as follows:(a) the Judge erred in allowing the Crown to lead evidence from J that shehad seen L being violent towards a previous partner;(b) the Judge erred in preventing the defence from exploring allegationsmade by J's mother that L had indecently assaulted her as well; and(c) the Judge should have aborted the trial when an exhibit was given tothe jury containing an unredacted reference suggesting that L hadpreviously served a prison sentence.[29] We now examine each of these complaints in turn.Admissibility of evidence that complainant had seen L being violent to a formerpartner[30] In her evidential interview, J said:I know, I, I could of like screamed or ran but like the doors were locked andhe's a violent person, like I watched the, I've seen him hit his girlfriend andlock all the doors.[31] In response to a question from the interviewer J said she had only seen L beviolent towards his ex-girlfriend once.[32] The Crown was granted permission in a pre-trial ruling to adduce this evidencefor the purposes of contextualising J's response to the offending and in particular toexplain her failure to resist L or seek help.3 The evidence was said to bear directly onher credibility as it would provide the jury with a reason for behaviour that otherwisemight be difficult for the jury to rationalise given the circumstances as described byher.4[33] In the pre-trial ruling, the Judge distinguished this evidence from otherevidence sought to be adduced by the Crown of unspecified family knowledge aboutthe defendant being violent.5 The Judge excluded this other evidence because sheconsidered it was too general and hence too prejudicial. Unlike this other evidence,J's statement was not directed at L having a general tendency towards violence.[34] The Judge acknowledged that even so there was potential for prejudice againstL by a jury misusing the evidence but she was satisfied the risk of that could be dealtwith by a direction from the trial Judge.6[35] At the trial, the playing of the evidential video straddled two days of the trial.At the end of the first day, the trial Judge gave this direction to the jury:So ladies and gentlemen, we will interrupt the playing of that video interviewnow. I just – there are a couple of things I just want to say, ladies andgentlemen, before I excuse you for the evening.The first is in relation to some portions of the evidence you've seen on thevideo interview. You will have realised that at two or three places there werereferences by [J] to the defendant being violent or to her witnessing an assaulton his girlfriend. The point I need to stress to you now, he's not charged withany offence of that nature, all right? So the only relevance of that evidencefrom [J] is because [J] says that influenced the way she acted, how sheresponded, so how she acted or didn't act, all right? So it's relevant to yourassessment of [J]'s evidence in what she did or didn't do, all right?You must not, however, reason that because [J] says that she has witnessed [L]being violent towards [his] girlfriend either that he must be a violent personor that he must be guilty. That wouldn't be the way to reason. The evidenceis sim – that piece, those pieces of evidence are simply relevant to your3 R v [L] [2022] NZDC 12755 [Pre-trial judgment].4 An application for leave to appeal the pre-trial ruling was filed on 18 July 2022 but the applicationwas abandoned on 3 August 2022. We were told this was because the trial was imminent..5 Pre-trial judgment, above n 3, at [14].6 At [16].assessment of [J]'s explanation as to how she felt and how she reacted to whatshe says happened to her, all right? Okay.[36] On appeal, Mr Carruthers contends the evidence should never have beenadmitted. In his submission, it was prejudicial to L as demonstrated by the fact theJudge felt the need to give a direction. Yet its probative value was negligible and itwas unnecessary to the Crown case. Mr Carruthers argued that to the extent J'sreaction called for an explanation, there were any number of reasons apparent fromother evidence, such as the time of night, the locked doors, the fact they were alone,and the age, size and strength disparities between J and L. In addition, there was alsoan agreed statement of facts detailing counter-intuitive evidence about the behaviourof victims of sexual abuse. Mr Carruthers further contended that the fact it wasunnecessary is underscored by the fact that neither the prosecutor nor trial counselmentioned it in their closing addresses.[37] We do not agree the evidence should have been excluded. While it wastechnically within the statutory definition of propensity evidence, it was not beingadduced for the purpose of showing L had a propensity to be violent and that was madevery clear to the jury. Instead, it was relied upon by the Crown to explain J's response.On that basis, it was directly relevant and had probative force in relation to J'scredibility.[38] As the Crown submitted, it must be preferable (subject to unfair prejudice) thatthe jury consider J's actual reasons for responding as she did, rather than speculate. Itis correct for example that the doors were locked but J accepted in cross-examinationthey were locked from the inside. Further, there was evidence she was aware therewas a couple living upstairs in the same house and although Mr Carruthers regardedthe close relationship between L and J as providing the jury with a possible explanationfor her lack of resistance, it could also be argued that on the contrary the closeness ofthe relationship would be considered likely to have given her the confidence to tellhim to stop immediately. As for the agreed statement of facts, none of the matters inthat statement specifically addressed the issue of failing to resist or call for help.[39] We would point out too that whether something is mentioned in closingaddresses is not the test of its probative worth or admissibility. All it means is that itwas not given emphasis which in this instance was appropriate. Nor does the fact adirection is given mean the evidence should never have been admitted in the first place.As for the risk of impermissible reasoning and prejudice, the Judge had given cleardirections on the proper use of the evidence. He also gave the standard direction onsympathy and prejudice which further mitigated the risk of unfair prejudice.[40] We conclude the pre-trial ruling was correct and that the trial Judge was rightto follow it.[41] We turn now to consider the second alleged error.Wrongly curtailing defence counsel from exploring allegations of indecent touchingmade against L by J's mother[42] This issue arises out of the accounts given by J and her mother M about thecircumstances leading up to J's disclosure of the alleged sexual abuse. Those accountswere contained in J's evidential interview of 20 September 2020 and in her mother'sformal statement to police a month later on 30 November 2020.[43] J and M were upstairs lying on the mother's bed. M was worried about J whohad not been herself. M sensed that something was wrong and that it had somethingto do with a boy.[44] M asked J if she could ask her a question and when J said "yes", her mothersaid "you know you can tell me anything". M then referred to the breakdown of thepreviously close relationship between J and her father and asked J whether her fatherhad done something to her. When J responded in the negative, M said it was not goodto hold onto stuff, to let it out and asked again whether something had happenedbetween her and her father, had he touched her. J again replied in the negative. Hermother said she knew something had happened, that it had something to do with amale and again assured J she could tell her anything.[45] In order to encourage J to confide in her, M then told J about two experiencesshe had had with L. The first was when L was at primary school. L was ten or soyears younger than M and her then husband (L's brother). L was lying on the floor oftheir bedroom and M and her husband were in their bed. M told J that she felt L touchher thigh and although he claimed he was only looking for the TV remote she did notbelieve him. The second story was that several years ago L was drunk and he grabbedher on the bottom while they were both in the kitchen of the house where the extendedfamily was living.[46] After sharing these stories with J, M then said words along the lines that J"[didn't] have to tell [her] what happened", "just tell me the name", "I know somethinghas happened", "I know it has to do with a male". M told J she loved her. J started tocry and said it was L.[47] J then disclosed some of her claims about what happened on the movie night.[48] The fact that J named L in such close temporal proximity7 to the stories thather mother had told her about L was something that was clearly relevant to J'scredibility. It raised the possibility that her account had been influenced by M's storiesand that she had simply latched onto L's name. It was an obvious defence point. Butat the same time telling the jury about the allegations in the first place was alsopotentially prejudicial.[49] It appears there was a discussion about the matter during a pre-trialteleconference callover. In a minute of the conference call dated 14 May 2021, theJudge noted there was an issue around prejudicial material contained in some of theCrown's formal written statements. The note goes on to say that the defence wasaware of the material but required it for the defence they intended to advance at trial.Accordingly there was no challenge to the evidence.[50] At trial, an edited version of the conversation between mother and daughter inJ's evidential interview was played to the jury. The editing which appears to havebeen a Crown initiative took the form of removing the detail of M's allegations against7 Under cross-examination, M gave inconsistent accounts as to whether the telling of the two storiescame before or after J named L. However, the weight of evidence supports a finding that it wasbefore and, as that is the more favourable order of events for the defence, we adopt it for thepurposes of the appeal.L. What was left was that when asked about the disclosure to M, J said that M "hadhad an incident" with L as well. Also retained was the following statement:Mum [and I] just talking and we usually have our like, a deep talks, just sothat she knows I'm okay and then she told me how [L] had tried to touch her a fright and my dad swore at him, so when she told me that I broke downcrying because it remind that, it triggered with me what [had] happened, sothat's when I finally told her what happened. But also hard cause I been tryingto tell her for over a year now but I didn't know how to tell her. I didn't knowhow to say it cause I thought no one would believe me Cause we were soclose I thought, everyone would think why would he do that to me.[51] Similarly, when M gave her evidence, the Crown did not lead any evidencefrom her about her allegations against L.[52] However, trial counsel cross-examined both J and M at some length about thedetail of M's allegations effectively challenging M about the truth of them. Before thecross-examination was concluded, the Judge asked to see counsel in chambers.[53] The transcript of the discussion that followed records the Judge questioningthe relevance of the questions that were being asked. Trial counsel submitted it wasrelevant because if M's allegations were true it meant it was more likely L hadcommitted the offences against J. The Judge disagreed and expressed the view thatthe only relevance of it could be to support a defence submission that M put L's namein J's head. Defence counsel requested that he be allowed to put to M that it neverhappened and that L be permitted to deny it when he came to give evidence.[54] The Judge declined those requests. The hearing then resumed with defencecounsel continuing his cross-examination of M by asking her questions on othertopics. At the conclusion of the cross-examination, the Judge gave the followingdirection to the jury:Mr Foreperson, ladies and gentlemen of the jury, it will be apparent to youthat some questions have been asked of [M] and also [J] when she was beingcross-examined about what [M] may have said to [J] about [L] before [J]mentioned [L]'s name.I want to make it abundantly clear at this point that this trial is not aboutwhether anything untoward has previously happened between [L] and [M].He is not charged with having done anything in relation to her. The solerelevance of that piece of evidence is simply because it is the sequence ofevents which led to [J] saying his name as the person who had offended againsther.You must not turn your mind to the issue of whether what [M] told [J] was orwas not true because it is simply not relevant. And I warn you now at this pointthat you must also actively guard against wrongfully reasoning about [L]because of this piece of evidence. It would be completely wrong for you tosay, for example: "Oh well, he did it to [M] and, therefore, he must have doneit to [J]." That would not be fair on him. It would not be fair on anyone. Thesole reason you have heard about this, the fact that [M] told two stories about[L] was because it followed her being told that, that she said the person whohad offended against her was [L].This case is not going to be about whether these things were true or not andwe are not going to be hearing evidence about whether they were true or not.I just want to make that clear to you at this stage because I do not want you tothink that we are getting off on another piece of evidence which we are goingto have to make findings of fact about as to whether it was true or not. It doesnot matter whether it was true or not what matters is the fact that the story wastold. Thank you very much.[55] The Judge returned to this evidence in his summing when giving the standarddirection on prejudice and sympathy. He said:[15] There were a couple of examples in the course of the trial whereprejudice could arise and you might remember that I directed you during thetrial. For example, you heard [M]'s evidence about what she told [J] aboutwhat [L] had done previously to her. Now, again, I just remind you of what Itold you at the time. The sole relevance of that evidence goes to the fact thatshe said those things, it forms the sequence of events in which [J] disclosed[L]'s name to her mother. The truth or falsity of what [M] told her daughter issimply not an issue in this trial and you should not speculate about that. Ipositively direct you that you must not use what [M] told her daughter asevidence against [L]. It would be completely wrong, for example, for you toreason that because [M] said he did something to her that makes it more likelythat he did what [J] says. That line of reasoning would simply be to allowprejudicial thinking to colour your decision-making process.[56] Although the situation arose largely as the result of defence cross-examination,L does not raise any issue of trial counsel error on appeal. Rather, the complaint isthat the Judge should have allowed trial counsel to pursue that line ofcross-examination or at least have allowed L to make it clear that he rejected theallegations made by M and why.[57] In our view, there can be no dispute that the Judge was correct in his assessmentthat the truth or falsity of M's allegations was irrelevant. The only relevance was thefact they were made and their effect on J. M was not a complainant and to haveallowed the cross-examination to continue along the same lines would have resultedin a trial within a trial. It would likely have been more prejudicial to L, not less. Thepossibility that M would admit to fabricating the allegations was remote.[58] The argument that the jury should at least have heard L deny the allegationsoverlooks that during his police interview, L was told the circumstances in which hisname had come to be mentioned by J. He was asked to explain that and being underthe misapprehension that he was being asked to explain M's allegations (as opposedto J identifying him) said it was so long ago, he could not remember. That would havebeen difficult to reconcile with a contrary answer in evidence. Arguably it was in L'sbest interests for the Judge to close it down in the way he did.[59] To the extent that the introduction of this evidence did result in unfairprejudice, it was significantly mitigated by the very emphatic and firm directions givenby the Judge both during M's evidence and in his summing up.8[60] We would add too that any concerns must also be tempered against the otherextremely positive evidence given by M about L. She referred to L as being a "positiveinfluence" on J, a "bit teddy bear like", a "beautiful unclehe honestly is" and "agood dad". She described how L and J had a "father and daughter bond" and how,because J's relationship with her father "wasn't that great", she thought "it was good"that L was "stepping [into] that role". M said she was astounded when J named L.[61] It would in our view have been clear to the jury that even if L had touched M,an adult woman, in the past as claimed – once when he was just primary school ageand once when he was intoxicated – it could only have been relatively minor.Otherwise, M would never have praised him in the way she did and nor would shehave entrusted her children especially her two daughters into his charge. There waseven evidence that on the night in question J who had been initially keen to stay at L'splace went off the idea but was pushed to go by her mother, her mother thinking itwould be good for both J and L. There was no suggestion that M was anything otherthan a responsible and devoted mother.8 It was not of course necessary for him to give a propensity direction.[62] In all these circumstances, we are not persuaded that the Judge's interventionwas an error let alone one that had a real risk of impacting the outcome of the trial.Failing to abort the trial[63] There was evidence that while J felt able to tell her mother and sister what hadhappened, she was unable to face telling her brother and father. Instead, she wrote anaccount of what happened using the notes app on her cell phone. The notes were thenread out by M to her son and then her husband. The notes had been written before thepolice became involved.[64] The Crown produced these notes by consent under s 35(2)(a) of the EvidenceAct 2006 as a prior consistent statement in response to an allegation of recentinvention. The notes were given an exhibit number and provided to the jury after J'sevidence had concluded on day two of the trial. That rest of that day was taken upwith M's evidence.[65] The next morning, before the hearing resumed, counsel asked to see the Judge.In her phone notes, J had written that L had told her not to tell anyone what hadhappened because he did not want to go "back to prison." The word "back" wassupposed to have been redacted – as it had been in J's evidence in chief – but throughoversight the phone notes had not been redacted and this had only just been discovered.The Judge gave trial counsel an opportunity to take instructions and, out of anabundance of caution, directed the Registrar to retrieve the jury's copies of the exhibit.[66] Subsequently trial counsel advised the Judge that he had spoken to L. Heconsidered the only way of curing the prejudice arising from the mistake was eitherfor the Judge to give a direction or to abort the trial. L did not want the trial to beaborted and so asked for a direction.[67] The Judge then gave the jury the following direction:Good morning Mr Foreperson, ladies and gentlemen of the jury. I am sorry wehave kept you waiting, it is because an issue has arisen and I needed to discussthat matter with counsel. I am going to give you a direction about that issuenow.In the course of the trial you heard evidence from [J] that [L] had said to hereffectively that she should not tell anyone about what had happened betweenthem because if she did [L] would go to jail. You also had produced to youexhibit 3, which is the notes that [J] made on her phone about what hadhappened.Counsel have now realised and pointed out to me that in her written notes [J]wrote down the words "back to" when she was talking about jail, so she wrotedown that [L] told her he would go "back" to jail.The point that I need to make to you now is that there is actually no evidencebefore you that [L] had previously been to jail. There is a very good reasonfor that, because it would be irrelevant to your consideration of the facts ofthis case if that indeed was the case.The issue you have to decide is whether [L] offended against [J] in the waythat she describes on the date or dates that she describes. Whether or not [L]has ever been in trouble before does not help you to determine that issue.The direction I am giving you ladies and gentlemen, if you had read thosewords in the exhibit, and I see some of you nodding so you had obviouslypicked up on that, is that you must not take any adverse inference or draw anyadverse conclusions against [L] from the fact that those words were includedin [J]'s written notes. To do so would simply be to permit prejudice toinfluence your decision-making process and I have already told you that a jurymust never decide a case on the basis of prejudice or sympathy.I direct you ladies and gentlemen, when it comes to considering your verdictson this matter that those words in exhibit 3, the words "back to", should beput completely out of your mind when you consider your verdicts. Again,there is actually no evidence in this case as to whether or not [L] had everpreviously been to jail or, indeed, why [J] included those words "back to" inher written notes. Again, it would be completely wrong for you to speculateon that issue, to guess on that issue or to draw any inferences or conclusionsadverse to [L] from the fact that she included those words in her notes.Thank you very much.[68] On appeal, Mr Carruthers submits that after the first two errors, there was verylittle room for anything else to go wrong with the trial. And yet it did. He argued thatto tell the jury to ignore the reference to going "back" to prison was to ask too muchof it. Jurors were already being asked to regulate their reasoning and silo evidence ofviolence towards an ex-girlfriend as well as evidence of inappropriate touching of hissister-in-law and now another damning piece of evidence. Mr Carruthers furthersubmitted it was inevitable the jury would have been speculating as to why L had beenin prison – was it because of violence towards the ex-girlfriend or inappropriatetouching of M? In short, in Mr Carruthers' submission, the trial had reached the pointwhere the only way to preserve its integrity was to abort it.[69] In so far as this submission is premised on there having been two other errors,for the reasons already traversed, we do not accept that premise. In our view, therewere no other errors and the submissions regarding those issues over-state theprejudicial impact of them on the trial. Nor in relation to the unredacted phone notes,can it be argued the jury would have been speculating about whether L had been inprison as a result of M's allegations because the evidence was that other than herhusband she had never told anyone else about them before.[70] That said, there can be no doubt that the Crown's failure to redact the word"back" meant the jury received information with an illegitimately prejudicial effect.[71] Counsel referred us to a number of decisions of this Court which have hadoccasion to consider whether the introduction of prejudicial material has occasioned amiscarriage of justice. The following principles can be distilled from the case law:(a) The inadvertent disclosure of the imprisonment of a defendant is not ofitself sufficient reason for this Court to conclude there might have beena miscarriage of justice and that the jury should have been discharged.9(b) The inquiry by this Court on appeal is contextual. Not only must thenature of the information be considered but also the circumstances ofthe case as a whole. Relevant factors include the manner of thedisclosure, the nature of the defence and measures taken to reduce theeffect of the unfairly prejudicial evidence.10(c) In cases where a direction has been given to ignore the information, thequestion is whether the jury could be expected to follow that direction.11(d) A miscarriage of justice will likely result where the illegitimatelyprejudicial effect of the information received is beyond retrieval by anydirection no matter how emphatic.129 Edmonds v R [2015] NZCA 152 at [24]; and Romanov v R [2018] NZCA 59 at [30].10 Edmonds v R, above n 9, at [24].11 Storey v R [2013] NZCA 500 at [15]–[16].12 At [16].(e) The contextual nature of the inquiry means the decision is best madeby the trial judge and an appellate court will not lightly interfere.13(f) The trial judge has a wide discretion.14[72] Applying those principles to the circumstances of this case, we note there weretwo references in the phone notes to L saying that if J told anyone he would go backto prison. But there were not repeated references as there were in Romanov v R andthe references were only contained in the one item of evidence.15 The reference wasdisclosed inadvertently. A countervailing factor is the nature of the defence. Asalready mentioned, the case hinged on credibility, a factor which was said inEdmonds v R means unfairly prejudicial evidence may be considered moresignificant.16 On the other hand, there were strong measures taken by the Judge aswas appropriate given this was a short trial. His direction was clear and strong.[73] It needs to be borne in mind too that the jury had the transcript of J's evidentialinterview in which the very same statement was recorded as L telling her he would goto prison. No "back" about it.[74] The relevant context also includes the fact that L's good character was astriking feature of the Crown case. As already mentioned, M, despite her allegationsof inappropriate touching, spoke highly of L as did J's brother and sister. J herselftalked of the respect for L among the family generally. In addition, the defenceproduced photographic evidence of L taking J and her siblings for outings, all lookingvery happy and relaxed in his company.[75] Finally, it must be relevant, although obviously not determinative, that afterspeaking to his lawyer, L made a deliberate choice to proceed despite being aware ofthe prejudice arising from the inadvertent disclosure. He did not want to abort thetrial.13 Keepa v R [2014] NZCA 79 at [12].14 At [12].15 Romanov v R, above n 9.16 Edmonds v R, above n 9, at [24].[76] Weighing up all those factors, we are not persuaded the Judge erred in decidingto deal with the matter by way of a firm direction, rather than discharging the jury. Hisdecision did not in our view create the risk of a miscarriage of justice.[77] Having concluded that the Judge did not err in his evidential rulings nor in hisdecision to give the jury a direction rather than abort the trial, we are satisfied that theappeal grounds have not been made out and that accordingly the appeal againstconviction should be dismissed.Appeal against sentenceThe sentencing[78] At sentencing, the Judge identified the following aggravating features of theoffending: the age disparity between L and J, the number of discrete assaults, J'svulnerability, the high degree of abuse of trust, the intrusive nature of the masturbationand kissing indecencies, the manipulation of J in order to conceal the offending andthe significant harm caused to J who has suffered from mental health problemsincluding anxiety and suicidal ideations as a result of the offending.17[79] Having regard to those aggravating features, the Judge identified theappropriate starting point as being two years' imprisonment.18 He then discounted thisby three months on account of modest rehabilitative efforts made by L to curb hisalcohol abuse and matters identified in a s 27 report.19[80] That adjustment to the starting point meant L was eligible to be considered forhome detention. The Judge however held that in all the circumstances the relevantpurposes and principles of sentencing – in particular, the need for deterrence,denunciation and protection of the community – would not be achieved by a sentenceof home detention. The Judge was also influenced by concerns regarding thesuitability of the proposed home detention address.2017 Sentencing notes, above n 1, at [17]–[20].18 At [21].19 At [29].20 At [30]–[31].[81] On each of the charges he therefore sentenced L to 21 months' imprisonment,the sentences to run concurrently.Arguments on appeal[82] On appeal, no issue is taken with the starting points nor with the discounts. Itis accepted they were within range.[83] What is challenged is the decision not to commute the sentence to homedetention. In Mr Carruthers' submission, the Judge over-stated the need forcommunity protection and that his concerns about the proposed address, whichmirrored those of the PAC report writer, were unfounded. Mr Carruthers was alsocritical of the Judge's failure to consider the impact of registration on the Child SexOffender Register which by operation of law was an automatic consequence ofimposing a custodial sentence.[84] In support of these central contentions, Mr Carruthers referred to the absenceof any previous convictions for sexual offending, the eight year gap in L's criminalrecord reflecting the efforts L had made to turn his life around as well as the fact thatprior to sentencing L had been on bail for 20 months at the same address proposed forhome detention without any incident. That was so despite the fact he had much greaterfreedom to re-offend than he would have on home detention, a sentence which as theJudge himself acknowledged can deter and denounce. Mr Carruthers told us the bailconditions were relaxed and in particular did not include either a curfew condition ora condition prohibiting L from associating with children. During the 20 months onbail he did associate with children including the children of his partner who had noconcerns.Analysis[85] As noted in Palmer v R, the margin of appreciation extended to sentencingjudges when it comes to decisions such as deciding between imprisonment and homedetention is usually significant.21 That must be especially so in cases such as the21 Palmer v R [2016] NZCA 541 at [19].present where the sentencing judge has presided over the trial and at sentencing hascorrectly directed himself in terms of s 16 of the Sentencing Act 2002.22[86] We accept that while imprisonment for sexual offending against children isgenerally appropriate, there is no presumption dictating that result. In this case, acritical factor is that L showed no remorse or insight into his offending. He continuedto deny the offending, did not want to talk about it to the report writer and clearly didnot accept there was any need for associated rehabilitative programmes. Thatobviously impacted on an assessment of his prospects of rehabilitation. L alsoadmitted to the pre-sentence report writer that he was under the influence ofmethamphetamine on the night in question, using it as a coping mechanism, havingfirst started using it in his early teens[87] L's attitude of entitlement, illicit drug use and sexually deviant arousal wereidentified by the pre-sentence report as key factors that contributed to his offendingand that given J's age, and her vulnerability combined with the ultimate breach of trustmeant in the report writer's opinion that L posed a very high risk of harm to childrenunder 16 years.[88] This in turn influenced the report's assessment of the suitability of the proposedaddress situated as it was said to be in a densely populated street located in closeproximity to neighbouring properties occupied by families and within 500 metres ofseveral churches and a reserve. That had raised concerns for Community Correctionsgiven L's denial of the offending and his expressed intention to work with youth. Therewas also concern that home detention would, despite a standard abstinence condition,provide an opportunity for L to continue using methamphetamine to combat theboredom or low moods that can arise from such a sentence. There was concern toothat restricting people under the age of 16 from visiting the house would indirectlypunish other members of the household, including his mother (J's grandmother).22 Section 16(2) states that a sentence of imprisonment cannot be imposed by the court unless it issatisfied that the sentence is being imposed for particular purposes in s 7(1), and that thosepurposes cannot be achieved by a sentence other than imprisonment. Section 16(1) requires thecourt to consider the desirability of keeping offenders in the community as far as that is practicableand consonant with the safety of the community.[89] The report concluded that due to the substantial risk posed to L's nieces underthe age of 16 compounded with his use of methamphetamine, the address was deemedunsuitable.[90] Contrary to Mr Carruther's submissions, we are not persuaded the Judgeshould have rejected this assessment because of an incident-free bail period. Apartfrom anything else, the Judge was, in our view, entitled to take into account that onconviction, risks are known to escalate.[91] L's continued denial of the offending also answers the issue of whether theJudge erred in failing to have regard to the impact of registration on the Child SexOffenders register. There is High Court authority, the case of Bird v Police, whichsuggests the impact of registration may be a relevant factor to take into account whendeciding whether to impose a custodial sentence.23 The correctness of that propositionhas not yet been considered by this Court but in any event Bird makes it very clear thatit is not a mandatory factor and that all depends on the circumstances.24 In Bird, thecircumstances were markedly different to this case. The offending was less serious,25and the offender was deeply remorseful. He pleaded guilty at the earliest possibleopportunity, engaged in restorative justice and was assessed as a low risk to thecommunity with real prospects of rehabilitation.[92] For all these reasons we are not persuaded the sentence of 21 months'imprisonment was manifestly excessive. Appellate intervention is not required.Outcome[93] The appeal against conviction is dismissed.23 Bird v Police [2017] NZHC 1296.24 At [44].25 The offending in Bird consisted of touching the victim's stomach on two occasions and giving herwhat was described as "a peck" on the lips.[94] The appeal against sentence is dismissed.Solicitors:Crown Solicitor, Auckland for Respondent