SCOTT v R [2020] NZCA 448

SCOTT v R [2020] NZCA 448 [24 September 2020]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 AOTEAROACA217/2020[2020] NZCA 448BETWEEN LEWIS EDWARD SCOTTAppellantAND THE QUEENRespondentHearing: 25 June 2020Court: Brown, Brewer and Hinton JJCounsel: L C Ord and E T Blincoe for AppellantD R La Hood and M A Shaw for RespondentJudgment: 24 September 2020 at 10.30 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Hinton J)[1] Mr Scott has twice been tried on two charges of sexual violation (one by rape,the other by unlawful sexual connection) and one charge of indecent assault, relatingto events in March 2007.11 Crimes Act 1961, ss 128(1)(a) and (b) (maximum penalty 20 years' imprisonment) and 135(maximum penalty 7 years' imprisonment).[2] The first trial was in August 2017. Mr Scott was convicted on all three chargesand was later sentenced to four years' imprisonment by Judge Adeane.2On 14 December 2018, this Court quashed the convictions with reasons given on4 April 2019.3[3] Following a retrial before Judge JM Kelly and jury, on 17 February 2020Mr Scott was convicted on the two charges of sexual violation but acquitted on thecharge of indecent assault. On 7 April 2020, Judge Kelly sentenced Mr Scott to sixyears' imprisonment.4[4] Mr Scott now appeals both the convictions entered following the retrial and thesentence imposed by Judge Kelly.[5] A number of points are taken on the conviction appeal. Mr Scott challengesthe Judge's directions to the jury regarding the elements of sexual violation, which aresaid to have been in error and resulted in a miscarriage. The summing up as a wholeis also said to have been unbalanced for a number of reasons. Mr Scott further saysthe fact that information regarding the first trial remained available on the internetduring the retrial resulted in his second trial being unfair.[6] As to sentence, Mr Scott says Judge Kelly erred in imposing a differentsentence than did Judge Adeane. Moreover he says, even if the Judge was free toimpose a different sentence, the sentence imposed was manifestly excessive.Background[7] Mr Scott is a poet. He performed at a festival in 2007 which the complainantattended. The Crown's case was that after the festival Mr Scott emailed thecomplainant, inviting her to collaborate on a future performance. On a Saturdayevening in late March 2007, the complainant went to Mr Scott's flat. She said she hadbeen expecting a business meeting, but instead discovered Mr Scott had prepared2 R v Scott [2017] NZDC 25618.3 Scott v R [2018] NZCA 591; and Scott v R [2019] NZCA 90.4 R v Scott [2020] NZDC 6073 [Sentencing notes].dinner and bought flowers and champagne. She stayed for dinner, which she describedas an uncomfortable experience.[8] After dinner, she said, Mr Scott turned the conversation to sexual matters.Repulsed, she went to leave. But after a "really quick" series of events she foundherself underneath Mr Scott on the floor, his weight pinning her there.The complainant's evidence was that Mr Scott then moved her legs apart andpenetrated her vagina with his fingers in a stabbing-like motion. Feeling "totallyoverpowered" and thinking that "it's probably going to be worse" if she resisted, shepretended to submit. This involved opening her legs, raising her pelvis, and relaxing.Mr Scott then momentarily penetrated her vagina with his penis. The complainantsaid that immediately after feigning submission she was able to escape from underMr Scott and to get out of the building.[9] The defence case was that there had never been any suggestion of a businessmeeting. Rather, Mr Scott had invited the complainant over for a social dinner.They talked, drank wine, ate dinner, and then sat on the floor. Consensual sexualcontact ensued from there, ending when the complainant told Mr Scott she did notwant to have a one-night stand.5 Mr Scott denied having forcibly placed thecomplainant on the ground or overpowered her. In particular, he denied havingstabbed the complainant's vagina with his fingers, saying he had briefly digitallypenetrated her before engaging in a fleeting act of vaginal intercourse, all with herconsent. His case was that the complainant was lying, having come to regretconsenting to any sexual activity.[10] The complainant did not pursue the matter with the Police in 2007. She saidshe was too embarrassed at having put herself in that position.[11] However, in 2014 Mr Scott was convicted on three charges of sexual violationagainst another woman. These arose in 2012. After becoming aware of the 2014convictions, the complainant laid her complaint.5 An application to adduce statements of similar previous encounters of the complainant (beingevidence of the complainant's sexual experience) pursuant to s 44 of the Evidence Act 2006 wasdismissed: R v Scott [2019] NZDC 23616 at [32]–[43].Conviction AppealWere the Judge's directions on the elements of sexual violation accurate andsufficient?[12] Ms Ord submits the Judge inadequately directed the jury as to the element ofthe charge of sexual violation that requires the defendant to have, at the time ofconnection, lacked a reasonable belief in consent.6 She says, correctly, that the Crownclosed on the basis the complainant was telling the truth and she did not consent, andthat there were in effect only two options; either the complainant consented, or she didnot. Ms Ord says, also correctly, that the defence closed on the basis the defendantwas telling the truth and the complainant did consent. Ms Ord says it was incumbenton the Judge to fill the "middle ground", pointing to the possibility of the jury findingthe Crown had not proven Mr Scott lacked a reasonable belief in consent, which was"more complex" than believing one person or the other. We note Ms Ord has not setout what that direction might have been.[13] Ms Ord says that the possibility of an honestly held but mistaken belief inconsent emerges both from the evidence as to the circumstances in which Mr Scottand the complainant met at his home and from the complainant "feigning consent".[14] Mr Scott's trial counsel, Ms Stevens QC, closed on the basis that thesexual activity was consensual but later regretted and that the complainant was lying.She also, to the extent that it was available, raised the possibility that Mr Scott had areasonable belief in consent. This emerges from the following portion of Ms Stevens'closing address:At page 22 of the transcript, she describes changing her body language,"Relaxing," she calls it, "Like you would if you were making love tosomeone." And you have to decide if he had reasonable grounds to believe shewas consenting. "Like you were making love to someone," and then she says,"He just sort of reacted automatically and that's when he went to go insideme." You might agree with me, being people I am sure who have lived andexperienced, that that was an invitation for him to penetrate her This evidence completely contradicts her claim that he would obviously knowshe didn't want sexual intercourse. How could he? She's just opened her legs,raised her pelvis and waited for him to go in. It is, to use her words, deliberate.It was deliberate on her part for penetration by him. It is his reasonable belief6 Crimes Act, ss 128(2)(b) and 128(3)(b).that is in issue here. [The complainant] was deliberately creating the verybasis for him to form that belief in her consent. He followed her lead.The Crown says he cannot have a reasonable belief in consent because of thecircumstances that he forced her on the ground, forced her legs open. But thedefence response to that is, on the evidence that you've heard in this Court,that it just doesn't ring true what she claims about being forced. That wouldbe a huge thing, wouldn't it, to be thrown or forced onto the ground.[The complainant] says she can't remember how she got to the floor. Shecan't remember? She doesn't say he grabbed her arms, that he tripped her legsunderneath; she doesn't have any information for you about how thishappened. Unbelievable. It's a critical – it's probably the most critical part ofher story, that she's forced onto the floor. It's all meant to happen on the floor.She couldn't tell you how she got to the floor.This is a woman who is so insistent at her brilliant memory, it's not altered bytime, so insistent. I suggest to you that [the complainant] is not a reliable,credible or consistent witness. Her account is simply not believable.[15] As emerges in those later paragraphs however, while Ms Stevens did refer toevidence grounding the possible existence of a reasonable belief in consent and in factused that language, she largely assimilated this into the defence's denial of thecomplainant's version of events and Mr Scott's challenge to her credibility.As Mr La Hood for the Crown on appeal suggests, the jury was being invited to electbetween two inconsistent versions of events and make a credibility finding. That wasthe way in which the issue at trial was framed by the parties. It was, to that extent, tobe expected the Judge would follow that framework in summing up.7[16] Further, the Judge did direct the jury to the extent that was available to her asto the issue of the existence of a reasonable belief in consent. She did so both in thequestion trail and at paragraphs [16]–[19], [25], [32], [34]–[36], [45], [51], [53], [56],[58], [69], [73] and [75] of the summing up. Moreover, contrary to Ms Ord'ssubmission, the Judge did set out the appellant's version of the case as related to thisissue, again so far as it went, as follows:[73] Ms Stevens referred you to parts of the transcript and suggested thatat the time [the complainant] did not think he had done anything wrong.She felt it was her responsibility and that she deliberately created a situationwhere his penis went into her vagina and he just sort of acted automatically.Ms Stevens suggested [the complainant] was the one that created the activesexual penetration. She suggests [the complainant] opened her legs and raisedher pelvis for him to go in. It was deliberate on her part. It is his reasonablebelief in her consent that he followed her lead.7 See, for example, the situation in W (CA378/2016) v R [2017] NZCA 235 at [39].[17] The Judge did not have to construct a comprehensive "middle ground"narrative that was not tenable. She was not obliged to provide more fulsome directionson this issue. The appellant's reference to Kumar does not assist.8 The present casedoes not raise an issue of directions conflating the issues of consent and a reasonablebelief in consent. The summing up and question trail clearly distinguished betweenthese elements of the offence.[18] We also do not consider the Supreme Court's decision in Christian assiststhe appellant. In Christian the trial Judge gave no directions on reasonable groundsto believe in consent. The majority said that it is sufficient where the defendant doesnot make an issue of the existence of consent or reasonable belief in consent, for theJudge to "outline those elements", make it clear the Crown must prove lack of consentand lack of a reasonable belief in consent beyond a reasonable doubt, and "draw thejury's attention to any evidence relevant to those elements".9 Similarly, and morerelevantly, this Court has previously held that where actual consent is the primaryfocus at trial, brief directions as to reasonable consent cannot be criticised.10[19] For the reasons we have expressed above, we do not consider Mr Scott had,substantively, put the question of a reasonable belief in consent in issue because of theway in which the defence case was presented. The defence said that the incidentcomplained of did not happen in the way the complainant said. To the extent that theissue of reasonable belief in consent was raised, the Judge properly directed on it.[20] In those circumstances, it was sufficient for the Judge in summing up, as weare satisfied she did, to identify the absence of consent and the absence of a reasonablebelief in consent as separate elements of the offence;11 refer to the evidence relevantto those issues; and make it clear that the jury needed to consider these even if theyhad earlier accepted the complainant's version of events. This, coupled with theJudge's conventional rendering of the tripartite direction, left the jury properlyinstructed as to the elements of the offence and the burden of proof as related to theseissues.8 Kumar v R [2014] NZCA 58.9 Christian v R [2017] NZSC 145, [2018] 1 NZLR 315 at [36].10 W (CA378/2016) v R, above n 7, at [39].11 Kumar v R, above n 8, at [41].Was the Judge's direction on inference wrong?[21] Ms Ord takes issue with a passage of the summing up in which the Judgesought to explain the nature of inferential reasoning. Having explained the conceptgenerally, the Judge noted that:An example of an inference the Crown is asking you to draw in this case isthat from [the complainant's] actions Mr Scott did not believe she wasconsenting to the sexual acts and in relation to [the sexual violation charges]no reasonable person in Mr Scott's position could have believed that[the complainant] was consenting. Whether you draw that or any otherinference is a matter for you.[22] The existence of a state of mind is a matter of inference but the jury's findingas to what a reasonable person in Mr Scott's position could or could not have believedis not a matter to be inferred. It is an evaluation to be made based on all of the evidenceand the jurors' life experience.[23] However this is clearly not a direction that would have affected the outcomeof the trial. As noted above, the Judge elsewhere correctly directed on the meaning of"a reasonable belief" and the necessary inquiry in that respect. So nothing turns onthis on appeal.[24] We do not accept Ms Ord's further proposition that the Judge should havesought to use an example of inferential reasoning unrelated to the case at hand. In fact,this Court has endorsed inferential reasoning being explained using examples basedon the facts of the particular case.12Were the jury directions unbalanced in the Crown's favour?[25] Ms Ord makes other criticisms of the summing up and jury trail, in substancesuggesting each time that the directions were unbalanced in the Crown's favour.[26] The first of these is that, according to counsel, the Judge improperly bolsteredthe complainant's evidence by giving a number of "standard" directions includingpotential reasons for the delayed nature of her complaint. Ms Ord says that this was12 See Hunt v R [2007] NZCA 179 at [19]–[20]; and Hutchins v R [2016] NZCA 173 at [32].inappropriate where the complainant had stated her actual reasons for the delay, andthe Judge ought not to have given the jury other hypothetical scenarios to consider.[27] The Judge was not suggesting the complainant may have had other reasons fordelay. She was giving the generally accepted direction as to possible reasons for delaybased on that approved by the Supreme Court in DH v R. The point of this generaldirection is to combat the unhelpful "notion that delay signals untruth".13 This isespecially true where, as here, the defence has put the complainant's credibility andreliability in issue and referred to her delay in complaining in doing so. The followingpassage from the decision in DH answers Ms Ord's point:[48] There was no reason to assume that the jury would necessarily acceptthe complainant's explanation for the delay. The jury was invited not to do soby the defence. We accept Ms Markham's submission that there is an inherentcontradiction in the defence attacking the complainant's credibility on thebasis of delay and then saying that there is no need for expert evidence to dealwith the notion that delay signals untruth. In circumstances where s 127 ofthe Evidence Act permits a direction to be given by the Judge on the subjectof delay, the mere fact that a complainant gives a reason for the delay does notdisplace the usefulness of the direction. [28] We are also unpersuaded by the submission that the Judge erred while dealingwith the issue of the complainant's cross-examination on prior inconsistent statementsin telling the jury that "[i]t is a matter for you whether any earlier omission ordifference in her evidence in Court affects your overall assessment of her evidence."Ms Ord says this amounted to the Judge uncritically adopting the Crown's submissionthat all of the complainant's inconsistencies could be ignored. The Judge's languagewould also, she submits, have left the jury with the false impression it was entirelyoptional whether they turned their mind to assessing the inconsistencies and theirimportance.[29] That mischaracterises the direction. The Judge directed the jurors to decide asto which statements of the complainant, if any, they afforded weight; to have regardto any inconsistencies in determining how much weight to give that evidence; and tohave regard to the complainant's evidence generally. The direction required the jury13 DH v R [2015] NZSC 35, [2015] 1 NZLR 625 at [48].to, as Ms Ord says it should have, squarely confront and address the inconsistenciesand their importance.[30] Nor do we consider that the Judge erred, having adopted this approach tothe complainant's prior inconsistent statements, in then referring to the Crown'ssuggestion there were inconsistencies in Mr Scott's evidence, without setting outMr Scott's explanation of that inconsistency. The effect of this Ms Ord says, was toprejudicially communicate that there was an inconsistency in Mr Scott's evidence,while merely referring to the possibility of an inconsistency on the complainant's part.[31] We note that Mr Scott had in fact accepted he had made inconsistentstatements, so that was not in dispute. Despite that, the Judge directed the jury as tohow to approach any inconsistency in Mr Scott's evidence in materially the same wayshe directed them to deal with any inconsistency in the complainant's evidence.[32] We are also unpersuaded by Ms Ord's further suggestion that the Judge'ssumming up was unbalanced because her summary of the Crown case was about twiceas long as her summing up of the defence case, and because details of thecomplainant's evidence are outlined at several points whereas there is no detailedsummary of the defendant's narrative.[33] In summing up a Judge is not required to traverse every detail of both parties'cases or to deal with every item of evidence.14 Rather, "there is a wide discretion asto the level of detail" required of the Judge in summarising the parties' factualcontentions. The Judge need not "strive for an artificial balance between the rivalcases if the evidence clearly favours one side or the other".15[34] We consider that the summing up was fair and appropriately directed to thematters in issue. The fundamental factual dispute at trial was whether the sex wasconsensual, and, in turn, who was telling the truth. This was the inquiry to which theJudge clearly directed the jury. To the extent the Judge spent more time detailing the14 R v Anderson [1951] NZLR 615 (CA) at 627–628.15 Keremete v R CA247/03, 23 October 2003 at [18]–[19]. See also Ibbetson v R [2011] NZCA 228at [30].Crown's contentions and the complainant's evidence in this respect, that reflectsthe fact that the Crown bore the burden of proof and had been put to proof.16[35] Ms Ord next says the Judge ought not to have accepted a copy of the Crown'sclosing address when Ms Stevens was unable to provide a copy of her closing addressbecause it was handwritten. We are not sure how Ms Ord relates her point here to thetest on appeal, beyond suggesting that a Judge may be predisposed to adopt the formatof the party whose address is available in summing up, thereby unfairly prejudicingthe other side. If a Judge does improperly rely on one side's closing address insumming up, such that the summing up is unbalanced, that can result in a miscarriageof justice. However, we have already said that did not happen here. Nor does anywider fairness concern arise.[36] Finally, turning to address the question trail provided to the jury, Ms Ordsubmits the Judge ought not to have begun each question with the formula "has theCrown made you sure". That language, Ms Ord says, improperly "implies emphasison the value of advocacy, that is, persuasiveness, rather than [emphasis on] theevidence". She also says this formulation "encourages the idea that believing thecomplainant, 'common sense' and ignoring the defendant is enough for a guiltyverdict". In fact, the language used accords with the accepted Wanhalla direction asto the onus and burden of proof.17 This point must fail.Was the trial unfair because of publicity regarding Mr Scott's previous convictions?[37] Ms Ord also submits Mr Scott's trial was rendered unfair because informationregarding the first trial of the case in 2017 and also the unrelated 2014 trial wasavailable to view on the internet.[38] On 5 December 2019 Judge D C Clark had made takedown orders in respectof a number of news articles related to the 2017 trial in this case.18 These describedMr Scott as a "double rapist" who had received a "second conviction" for rape at the2017 trial, referencing the convictions entered in 2014. The Judge accepted Mr Scott's16 Guthrie v R [2011] NZCA 202 at [14].17 R v Wanhalla [2007] 2 NZLR 573 (CA) at [49].18 R v Scott [2019] NZDC 24410.fair trial rights would be compromised if the order was not made, as the articles werein general "both inflammatory and prejudicial".19[39] On the first day of the retrial, Ms Stevens applied for a stay of proceedings ordismissal of the charges on the basis, inter alia, that Mr Scott could not receive a fairtrial because the articles remained online despite the takedown orders.20[40] Dismissing the application, Judge Kelly noted the articles had been takendown, but short excerpts from them detailing Mr Scott's previous rape convictionsaccompanied the results produced by entering his name into various internet searchengines, such that information regarding his prior convictions remained readilyavailable.21[41] The issue as the Judge saw it was therefore solely whether there was a materialrisk her direction enjoining the jury from undertaking internet searches would bedisobeyed. Noting a difference of judicial views and also empirical evidenceregarding this point, the Judge considered that the jury process is founded on thefundamental assumption that jurors do follow directions of that type.22 Following thatassumption, a fair retrial remained possible.[42] So as to address the relevant risk, Judge Kelly warned the jury at the close ofeach day of the trial, and in her summing up, not to speculate as to why the case wasthe subject of a retrial, not to make their own enquiries, not to have any regard topre-trial publicity of which they were aware, not to engage in internet searches, and totell the Court if they or another juror undertook any such searches.[43] Ms Ord submits the Judge was wrong in her conclusion on the stay application.She refers to Ellis J's decision in Lyttle, where temporary takedown orders weregranted on the basis that jurors' "googling" of defendants is more widespread thanjudicial dicta had suggested.23 She contends that a fair trial could not proceed while19 At [18].20 Criminal Procedure Act 2011, s 147.21 R v Scott DC Wellington CRI-2014-085-15008, 10 February 2020 at [21]–[27].22 At [39]–[41].23 R v Lyttle [2017] NZHC 2426 at [14]–[17].there was a risk that a "determined and disobedient juror", as Judge Kelly put it,24would disobey even the strong directions given.[44] Moreover, Ms Ord invites us to conclude this risk was in fact realised becauseat the end of the day on Friday 14 February 2020 the jury reported an inability to reacha unanimous verdict, and yet within a short period after reconvening on the morningof Monday 17 February had agreed on their verdicts. The inference, Ms Ord submits,is that one of the jurors undertook an internet search over the weekend.[45] First of all the submission is not factually complete. Mr La Hood referred usto jury communications sent at 4.51 pm and 5.45 pm on Friday 14 February 2020saying that it would be possible, with more time, for the jury to arrive at a unanimousdecision, but that a minority of jurors had expressed a desire to have some time awayfrom the deliberation to review their position. Trial counsel are recorded as havingagreed to this proposal. Secondly, what happened after that is speculative as it is withany jury verdict. There is nothing before us that demonstrates that the jury's rapiddecision on the Monday was the result of anything more than the jurors having hadtime away and reviewed their position.[46] We also note the jury returned a not guilty verdict on one charge which,applying the appellant's reasoning, they would not have done had they been aware ofthe remaining online material.[47] As to the wider point, Lyttle concerned whether it was necessary to issuea takedown order to remove an article in advance of trial. Judge Kelly, in this case,was confronted by the more invidious situation in which the operation of internetsearch engines meant that potentially inflammatory portions of articles already takendown pursuant to such an order remained available. There is much less that can bedone about such digital artifacts. As Mr La Hood notes, if we were to accept Ms Ord'sproposed application of Lyttle (which we do not), it would rarely be possible toconduct a retrial of any matter in which publicity surrounded the first trial, given theexigent difficulty of completely removing material from the internet once it ispublished there.24 R v Scott, above n 21, at [31].[48] More generally, we note there is a clear division of judicial opinion on theextent to which jurors obey jury directions such as the fulsome instructionsJudge Kelly gave here. In supplementary submissions filed shortly in advance of thehearing, Ms Ord referred us to a number of decisions illustrating her contention thatjurors cannot be trusted in this respect.25 Mr La Hood refers us in turn to persuasiveexpressions elsewhere of the contrary view.26 As noted by Judge Kelly, referring toMoore J's decision in the High Court in Tarapata, the empirical evidence on thisquestion is similarly divided.27[49] While we understand counsel's concern, the simple point is that if ourcommunity is to continue to operate a jury trial system, jurors must be treated asfollowing directions on a whole range of topics. The trial judge provided orthodoxdirections to the jury in both her opening comments and her summing up to ignorepre-trial publicity and not engage in internet searches. Absent any cogent suggestionthat any juror in fact accessed prejudicial material in this case, we are not satisfied thetrial was unfair.[50] For all of the above reasons, the appeal against conviction is dismissed.Sentence Appeal[51] Judge Kelly sentenced Mr Scott to six years' imprisonment. At the conclusionof his first trial, Judge Adeane had sentenced him to only four years' imprisonment.28The appellant says Judge Kelly erred in departing from the sentence imposed byJudge Adeane.[52] Ms Ord appeared for Mr Scott at sentencing and made the same point toJudge Kelly who disagreed, saying the sentence imposed by Judge Adeane wasmanifestly too light and that in those circumstances she was entitled to conduct a newsentencing exercise.2925 Counsel referring to R v B (CA459/06) [2008] NZCA 130, [2009] 1 NZLR 293; R v Lyttle,above n 23; Parangi v R [2018] NZHC 3123; and Madsen v R [2020] NZHC 263.26 Kahia v Police [2018] NZHC 1023; and R v Tarapata [2017] NZHC 3209.27 R v Scott, above n 21, at [39], citing R v Tarapata, above n 26.28 R v Scott, above n 1.29 Sentencing notes, above n 4, at [30].[53] Doing so, the Judge placed Mr Scott's offending in band one of R v AM,30 theapplicable tariff case, identifying the aggravating features of the offending as beingthe element of premeditation evinced by his having lured the complainant to his homeand the provision of significant amounts of alcohol; the "more than mild" use ofviolence; and the significant distress caused to the complainant. She considereda starting point of six years and six months' imprisonment appropriate in thosecircumstances, uplifted by a year to reflect the 2012 offending.31[54] Turning to personal circumstances, Judge Kelly noted Mr Scott was then72 years of age and suffered from chronic lymphatic leukaemia diagnosed in 1999,which developed into Hodgkin's Lymphoma in 2013. The medical evidence indicatedhowever, and the Judge concluded, that Mr Scott's condition was stable, with nosignificant progression of the disease detected.32 In respect of age and health issues,the Judge allowed a discount of 20 per cent, which she said was generous in thosecircumstances.33[55] The Judge then rejected the submission that Mr Scott was entitled to anydiscount for previous good character.34 She also said that she was not obliged toconsider the application of totality but in any event recorded her view that an effectivesentence of 10 years' imprisonment was appropriate in respect of five sexual violationsinvolving the two separate incidents.35[56] In addition to her submission that Judge Kelly was unable properly to departfrom the sentence imposed by Judge Adeane, Ms Ord submits that the end sentenceimposed was manifestly excessive in any event, as the Judge erred at each stage of theprocess.30 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.31 Sentencing notes, above n 4, at [60]–[62] and [64].32 At [34] and [40]–[43].33 At [65]–[66].34 At [68].35 At [70] and [73].Sentencing after retrial[57] Generally speaking, a person convicted after a retrial can expect to receive thesame penalty imposed after the first trial, so as to avoid the impression they werepunished for exercising their right of appeal against conviction. However, the Judgesentencing after the retrial remains obligated to "make up his [or her] own mind" andmay impose a longer sentence in certain circumstances, including when the sentenceimposed after the first trial was manifestly inadequate.36[58] It follows that it is necessary for us to determine whether the sentence imposedby Judge Adeane was manifestly inadequate. If it was not, the appeal must be allowedand Judge Adeane's original sentence substituted. If it was manifestly inadequate,then Judge Kelly was entitled to depart from it and the question will then be whetherthe sentence Judge Kelly imposed was manifestly excessive. Both questions turn onthe proper application of sentencing principles.[59] Given the significant divergence between the two sentences, we approach thisexercise by determining whether we agree with the end result reached by Judge Kelly.If we do, that answers both limbs of the sentencing appeal.Starting point[60] This Court in R v AM identified four bands of rape offending (we take the rapeas the lead offence).37 Band one is appropriate for cases in which the aggravatingfeatures of rape offending identified in R v AM are either not present or are present toonly a limited extent. The sentencing range in band one is six to eight years'imprisonment. A starting point higher within this range is appropriate where one ormore aggravating factors is or are present to a low or moderate degree.38 In Crumpthis Court recently emphasised that in "unusual" cases a starting point below theband one range may be required.3936 R v Miers (1994) 11 CRNZ 307 (CA) at 312–313.37 R v AM (CA27/2009), above n 30, at [90].38 At [93].39 Crump v R [2020] NZCA 287 at [96].[61] We arrive at a slightly different view of the aggravating factors involved herethan did Judge Kelly. The Court in AM noted that a degree of violence inheres insexual violation, and that there will usually also be some "associated violence, forexample, pushing or pulling a victim to the ground and holding him or her down."It was only where the associated violence "is more than mild" that greater culpabilityrequiring a higher starting point is required.40 Some of the complainant's evidence asto the extent of the force used was equivocal. The violence here arguably did not gobeyond "more than mild" associated violence. Similarly, the harm to the complainanthere, while undoubtedly involving a profound and grave psychological impact, maybe no more than that which regrettably inheres in the offence of sexual violation.41We are not certain that these were aggravating features in this case, but it does notaffect our view of the start point. That is because we agree that Mr Scott's inviting thecomplainant to dinner at his home was an act of premeditation. He must be consideredto have been intent on achieving his aim, isolating her for that purpose.[62] We do not accept Ms Ord's submission that Mr Scott did have an honestly heldbut unreasonable and mistaken belief in consent and this is a mitigating factor. Thatin no way sits comfortably with either the jury's verdict or the facts as the jury musthave found them.42[63] We reject also Ms Ord's submission that the fact the penetration was onlyfleeting is a mitigating factor. At best it is an absence of an aggravating factor,signifying as it does a less violating assault than might have otherwise occurred.43[64] We do not consider that the aggravating factor of premeditation was present toa degree requiring any significant uplift from the bottom of the band one range.44Equally, this is not an "unusual" case where a starting point below the band one rangeis required.45 Given these points and the fact that two offences were involved, thestarting point of six years and six months' imprisonment adopted was appropriate.40 R v AM (CA27/2009), above n 30, at [38].41 At [44].42 At [53]. See also Crump v R, above n 39, at [93].43 See R v AM (CA27/2009), above n 30, at [52].44 For examples of cases justifying the higher end of band one, see at [94].45 See at [96].Uplift for subsequent offending and refusal to grant a good character discount[65] Ms Ord submits that Mr Scott should essentially be sentenced as a first-timeoffender in respect of the 2007 offending because, while not sentenced until 2020 forthat offending, his other relevant 2012 offending took place later in time than the indexoffending. In effect, Ms Ord's contention is that the Judge should have sentenced asif doing so as at 2007. In particular she says no uplift should have been imposed forthe 2012 offending and that the Judge was wrong to refuse a good character discount.[66] In Barrett, to which case both counsel referred us, this Court noted thatimposing an uplift for "later in time" offending in circumstances such as these may beseen to be unfair, and as resembling double punishment. However, that concern didnot prevail. It was said to be:46 unrealistic to disregard the fact that, following the first offence, theoffender had committed an offence or offences of the same or similar kind.The latter offending tends to convert the nature of the earlier offence from anisolated incident and make it part of a trend or pattern of offending. Thus, itwould not be open to the offender to advance the plea that it was a single orisolated incident, or that he enjoyed an impeccable and untarnished character,or that the offence was an aberration and unlikely to happen again.[67] We agree, and this answers Ms Ord's submission. As this Court put the samepoint in Hall, "a sentencing judge may take into account all matters proved to begermane to the case, assessed at the time of sentence".47 It would, as the Court put itin Barrett, be "unrealistic" if Judge Kelly was required to treat Mr Scott as someoneof unblemished character. His propensity towards sexual violence, now demonstratedby two separate incidents, requires a more serious sentencing response for thepurposes of denunciation, deterrence, and the promotion of accountability than wouldbe required in respect of a first-time offender.48 The uplift imposed appropriatelyrecognised this. No such uplift was imposed in the 2014 sentencing when it otherwisewould have been. There is therefore no double punishment.46 R v Barrett [1999] 1 NZLR 146 (CA) at 150.47 Hall v R [2010] NZCA 72 at [39] (emphasis added).48 Stusky v R [2009] NZCA 197 at [20].Discounts for age and health issues[68] Ms Ord submits Judge Kelly ought to have allowed Mr Scott a discount of33 per cent in respect of his age and health issues, rather than just 20 per cent.[69] Ill-health, whether coupled with advanced age or separately, can justify adiscount at sentencing to reflect the fact a sentence that is otherwise appropriate wouldbe disproportionately severe. In this respect, it is clear that Mr Scott, who is now inhis mid-70s, will spend a materially greater proportion of his remaining lifeincarcerated than would a young offender. Some discount is warranted to account forthe sentence being harsher in his case than it would be for a younger man.49[70] It is less clear that any significant further discount is required in respect ofMr Scott's imperfect health. His condition is stable. He is unlikely to suffer additionalhardship compared to other prisoners while his condition remains well managed.50This places Mr Scott in a more favourable position than was the appellant in Luce whowas in renal failure, required regular dialysis, and had at most two or three years tolive.51 Mr Luce received a discount of just under one-third. Mr Scott's case is alsomaterially different to that of Gallagher, where a 12 month sentence was reduced byover half on appeal to allow the immediate release of the 70-year-old appellant withnumerous medical conditions who would have required significant medicalintervention to achieve even a moderate level of health.52 Mr Scott is also no worseoff than the prisoner with a hernia and severe hypertension for whom prisonrepresented an unusual danger who received a 16 per cent discount for poor health.53[71] It follows that we consider the discount awarded of about 20 per cent wasappropriate, although a 25 per cent discount may have been justifiable. We furthernote that the Parole Board can grant compassionate release if Mr Scott's illnessworsens.5449 Sentencing Act 2002, s 8(h).50 Compare R v Verschaffelt [2002] 3 NZLR 772 (CA) at [27].51 Luce v R [2007] NZCA 476.52 R v Gallagher (1993) 9 CRNZ 421 (CA).53 KJB v R (CA41/07) [2007] NZCA 292.54 Parole Act 2002, s 41.Totality[72] Finally, Ms Ord submits the Judge erred in not reducing the end sentence onthe basis of totality, looking across both the 2007 and 2012 offending.[73] We accept, without deciding the point, that it may sometimes be appropriate toapply totality principles in cases such as this where a Judge imposes a second sentenceof imprisonment and a first sentence imposed in respect of similar offending hasalready been served.55 However, we also agree with the Judge that, on totality, the endsentence adopted was appropriate, producing as it did an effective "end sentence" ofcumulative sentences of imprisonment totalling 10 years for five band one sexualviolation charges stemming from two incidents unconnected in time involvingdifferent complainants.Conclusion on sentence appeal[74] Having essentially agreed with Judge Kelly's sentencing it follows that weconsider the sentence imposed by Judge Adeane was manifestly inadequate, andJudge Kelly was entitled to depart from it. It also follows that we do not consider hersentence to be manifestly excessive.Result[75] The appeal against conviction is dismissed.[76] The appeal against sentence is also dismissed.Solicitors:Ord Legal, Wellington for AppellantCrown Solicitor, Wellington for Respondent55 See R v Fissenden CA364/95, 21 February 1996 at 2; Skipper v R [2011] NZCA 250 at [34]; andSullivan v R [2016] NZCA 100 at [19].