SHARMA v R [2022] NZCA 648

SHARMA v R [2022] NZCA 648 [20 December 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA188/2022[2022] NZCA 648BETWEEN MADHUR SHARMAAppellantAND THE KINGRespondentHearing: 24 November 2022Court: Katz, Mander and Downs JJCounsel: N P Chisnall KC and L A Elborough for AppellantJ E Mildenhall for RespondentJudgment: 20 December 2022 at 1:00 pmJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.C The sentence of imprisonment is to take effect from 22 December 2022.Mr Sharma's bail is to continue in effect until that time.D Mr Sharma is required to surrender himself to the Prison Director atMt Eden Corrections Facility by 12.00 pm on 22 December 2022.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] Mr Madhur Sharma was found guilty by a jury in the Manukau District Courtof one charge of sexual violation by unlawful sexual connection and acquitted on afurther five charges of sexual violation. He was sentenced to two years andfour months' imprisonment.1 Mr Sharma now appeals against conviction andsentence.2[2] Mr Sharma appeals his conviction on two grounds. First, he says the guiltyverdict was unreasonable, as it cannot be reconciled with the not guilty verdicts on thefive other charges.3 Secondly, he argues the trial Judge erred by excluding propensityevidence Mr Sharma wished to adduce about himself.4 Mr Sharma appeals hissentence on the basis the term of imprisonment is manifestly excessive and he shouldhave received a sentence of home detention.5Background[3] The complainant, Ms M, was a 22-year-old international student who came toNew Zealand to attend a five-week English language course. She was placed withMr Sharma as a homestay student for the period of her study.[4] On the last day of the course, Ms M went for farewell drinks with friends beforereturning to Mr Sharma's place. She accepted that by the time she arrived home shewas intoxicated. Mr Sharma and Ms M had dinner together at his house and the twoof them drank more alcohol during and after dinner. Ms M became very drunk, to thepoint she briefly blacked out and at some stage vomited.[5] Ms M's evidence was that she awoke on the couch to Mr Sharma kissing hermouth, licking her face and touching her body. Ms M said Mr Sharma carried her intohis bedroom and laid her on the bed. She pretended to be asleep. While lying on thebed, Ms M alleged Mr Sharma started touching her and rubbed his penis in her face,trying to force it into her mouth while standing beside the bed. She clenched her teeth1 R v Sharma [2022] NZDC 5592 [Sentencing notes].2 Criminal Procedure Act 2011, ss 229, 230(1)(c), 244 and 247(1)(d).3 Section 232(2)(a).4 Section 232(2)(c) and 232(4)(a).5 Section 250.to prevent Mr Sharma's penis entering her mouth. This allegation gave rise to a chargeof sexual violation by unlawful sexual connection (charge one).6[6] After lifting her outer clothing and pulling down her underwear, Ms M saidMr Sharma digitally penetrated her vagina (charge five: sexual violation by unlawfulsexual connection)7 and then raped her (charge two: sexual violation by rape).8Throughout, Ms M said she continued to feign being asleep.[7] Ms M alleged Mr Sharma then carried her to her bedroom and, after placingMs M onto the bed, repeated the oral sexual violation (charge three)9 rape(charge four)10 and digital penetration of her vagina (charge six).11 Ms M said shecontinued her pretence of being asleep. When Mr Sharma moved his penis from sideto side on her lips and face, she pretended to wake up. Ms M recounted thatMr Sharma told her she had been crying and then she said she needed to pack and getsome sleep. He then left her bedroom.[8] Ms M was due to fly out of the country the following morning. In the earlyhours, she rang the course provider's emergency number and spoke with the personon call that night. After disclosing she had been raped by her homestay parent, shewas uplifted from the address and taken to the police. An evidential interview washastily arranged and she underwent a medical examination that included the taking ofa vaginal swab from the top of her vagina around the opening of the cervix and anintroital swab from the vaginal opening. Mr Sharma's DNA was later located on theseswabs, although no trace of seminal fluids was found.[9] Mr Sharma was spoken to by police that morning. He denied any sexualactivity had taken place and voluntarily provided a DNA sample. Two days later,Mr Sharma informed police he wished to provide a further statement and wasreinterviewed. On this occasion, he said there had been sexual activity with Ms Mthat commenced after they had engaged in consensual kissing on a couch when they6 Crimes Act 1961, ss 128(1)(b) and 128B.7 Sections 128(1)(b) and 128B.8 Sections 128(1)(a) and 128B.9 Sections 128(1)(b) and 128B.10 Sections 128(1)(a) and 128B.11 Sections 128(1)(b) and 128B.were both very intoxicated. After she had gone to the bathroom to be sick, shestumbled so he carried her into his room and lay her on the bed.[10] On Mr Sharma's account, Ms M started caressing his penis over his pants andthen performed oral sex on him. Mr Sharma described the sexual activity as brief,saying he touched and/or licked her breasts and may have touched her vagina.He maintained all the activity was consensual. He denied any sexual intercourse butsaid it was likely he had put his finger inside Ms M's vagina, although he could notspecifically remember doing so.[11] Mr Sharma stated both he and Ms M briefly fell asleep on the bed before hecarried her to her room. Although Ms M initiated oral sex again, he told her to sleepand there was no intercourse. At trial, Mr Sharma repeated the second account he hadprovided to police. In explanation for why he had denied participating in sexualactivity with Ms M when the police first interviewed him, Mr Sharma said he was stillintoxicated at that time, scared and not thinking straight.The conviction appeal[12] Mr Sharma brings his appeal against conviction on two grounds. He alleges:(a) The jury's guilty verdict on charge five was unreasonable because itcannot be reconciled with the jury's not guilty verdicts on the other fivecharges.12(b) The Judge erred in his assessment of relevant propensity evidencesought to be introduced by the defence and thereby deprivedMr Sharma of the reasonable possibility of a more favourable verdict.13[13] The Crown's response is that the jury's verdicts were neither logicallyinconsistent nor unreasonable. It maintains the proposed propensity evidence wasproperly excluded and was not of a quality that might have affected the outcome ofthe trial.12 Criminal Procedure Act, s 232(2)(a).13 Section 232(2)(c) and 232(4)(a).Inconsistent verdictsRelevant principles[14] Verdicts will be inconsistent and therefore unreasonable where an acquittal onone charge renders a guilty verdict on another charge unsafe, in the sense that areasonable jury applying its mind properly to the admissible evidence could not havearrived at different verdicts.14 The test is one of "logic and reasonableness".15 If thereis some evidence to support the verdict said to be inconsistent, an appellate court willnot usurp the jury's function by substituting its own view of the facts for that of thejury.16[15] Nor will an inconsistency necessarily arise because a jury has accepted someof a witness's evidence but not all of it. The Supreme Court, in B (SC12/2013) v R,noted this was of particular importance where the Crown case rested almost entirelyon a complainant's evidence in a "she said, he said" case.17 In making thatobservation, the Court affirmed a passage from the joint judgment of Gleeson CJ,Hayne and Callinan JJ of the High Court of Australia in MFA v R that we consider hasparticular relevance to the present case:18... [E]mphasis will invariably be placed upon the onus of proof borne by theprosecution. In jurisdictions where unanimity is required, such asNew South Wales, every juror must be satisfied beyond reasonable doubt ofevery element in the offence. In the case of sexual offences, of which theremay be no objective evidence, some, or all, of the members of a jury mayrequire some supporting evidence before they are satisfied beyond reasonabledoubt on the word of a complainant. This may not be unreasonable. It doesnot necessarily involve a rejection of the complainant's evidence. A jurormight consider it more probable than not that a complainant is telling the truthbut require something additional before reaching a conclusion beyondreasonable doubt. The criminal trial procedure is designed to reinforce, injurors, a sense of the seriousness of their task, and of the heavy burden of proofundertaken by the prosecution. A verdict of not guilty does not necessarilyimply that a complainant has been disbelieved, or a want of confidence in thecomplainant. It may simply reflect a cautious approach to the discharge of aheavy responsibility. In addition to want of supporting evidence, other factors14 B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [68(c)] per McGrath, Glazebrookand Arnold JJ, citing R v Irvine [1976] 1 NZLR 96 (CA) at 99; and Dempsey v R [2013] NZCA297 at [18].15 B (SC12/2013) v R, above n 14, at [68(c)] per McGrath, Glazebrook and Arnold JJ.16 At [68(d)] per McGrath, Glazebrook and Arnold JJ.17 At [79]–[81] per McGrath, Glazebrook and Arnold JJ, citing R v Shipton [2007] 2 NZLR 218 (CA)at [77] and MFA v R [2002] HCA 53, (2002) 213 CLR 606 at [34].18 MFA v R, above n 17, at [34].that might cause a jury to draw back from reaching a conclusion beyondreasonable doubt in relation to some aspects of a complainant's evidencemight be that the complainant has shown some uncertainty as to matters ofdetail, or has been shown to have a faulty recollection of some matters, or hasbeen shown otherwise to be more reliable about some parts of his or herevidence than about others. [16] Where the different verdicts represent "an affront to logic and common sensewhich is unacceptable and strongly suggests a compromise of the performance of thejury's duty", an appellate court will intervene.19 The obligation to establishinconsistency rests with the appellant.20Mr Sharma's argument[17] Mr Sharma argued it is not possible to discern a rational basis upon which thejury could have reached different verdicts on the evidence it heard. He deniedcommitting the physical acts that constituted the two rape charges and the digitalpenetration of Ms M in her bedroom upon which he was acquitted (charges two, fourand six). However, he admitted having engaged in the physical acts that constitutedthe two charges of oral sexual connection (charges one and three) and digitalpenetration of Ms M's genitalia in his bedroom (charge five). In relation to thosecharges, he maintained Ms M consented and that he had a reasonable belief in consent.[18] On behalf of Mr Sharma, Mr Chisnall KC submitted there was no legitimatebasis for the jury to have distinguished between the charge upon which Mr Sharmawas convicted and the charges of which he was acquitted, given the state of theevidence. He argued there was no viable explanation for this combination of verdicts.[19] Mr Chisnall submitted no reasonable jury could have been unsure as to whetherthe physical acts of sexual intercourse (charges two and four), oral sex (charges oneand three), and digital penetration in Ms M's bedroom (charge six) had occurred, butbeen sure the act of digital penetration had taken place in Mr Sharma's bedroom(charge five). Nor, it was argued, could the jury have concluded there was a reasonablepossibility Ms M consented to the sexual acts that comprised the charges on whichMr Sharma was acquitted but that she did not consent to the digital penetration alleged19 At [68(e)], citing MacKenzie v R (1996) 190 CLR 348 at 368.20 B (SC12/2013) v R, above n 14, at [68(f)].in charge five. Similarly, it was submitted the jury could not have considered it to bereasonably possible Mr Sharma held a reasonable belief that Ms M was consenting tothe acts alleged in the five charges of which he was acquitted but not to the digitalpenetration described in charge five.Analysis[20] Mr Sharma's analysis of the verdicts relies on his account of what occurredbeing factored into the jury's approach to their task. In particular, he relies on hisadmissions to there having been connection between his penis and Ms M's mouth andto having digitally penetrated her genitalia in his bedroom as demonstrating that thequestion of consent must have been the pivotal issue for the jury when determiningthose charges. However, we consider that is an unsafe assumption and not one thatshould be accepted for the purpose of assessing whether the jury's verdicts areirreconcilable and therefore unreasonable.[21] The jury received orthodox directions on the need to consider each chargeseparately and to reach separate decisions in relation to each. The jury were alsodirected about the effect of Mr Sharma having given evidence. Notably, the jury werecautioned that if they disbelieved his evidence they were not to leap to a finding ofguilt, "because to do so would be to forget who has to prove the case". The jury weredirected that, in the event they disbelieved Mr Sharma's evidence, they were requiredto assess all the evidence they accepted as credible and reliable and ask the questionwhether it satisfied them of Mr Sharma's guilt to the required standard of proof beyondreasonable doubt. We also note the Crown in its closing urged the jury to rejectMr Sharma's various accounts, put his evidence to one side and come back to Ms M'sevidence in order to decide whether they could be sure the charges had been provedbeyond reasonable doubt.[22] It was legitimately open to the jury to reject Mr Sharma's account of whatoccurred as unreliable and untruthful, particularly in light of his initial false statementto police. However, the jury would still have to decide whether Ms M's evidence wassufficiently reliable to prove each of the charges beyond reasonable doubt. Ms M washeavily intoxicated at the time, to the point of being sick. By her own admission, shehad blacked out while sitting on a stool at the kitchen counter and had spoken ofpretending to be asleep effectively throughout the sexual activity. She had not been aconsistent narrator regarding the order in which the sexual acts had occurred, either inher statements to police or at trial, and the Crown had been obliged to amend thecharge sheet during the course of the trial to add an additional charge of unlawfulsexual connection when Ms M, for the first time, alleged there had been a further actof digital penetration in her bedroom. We also note the Crown's submission there maypotentially have been some uncertainty regarding Ms M's account arising fromlanguage difficulties. There was some haste in conducting her initial interviewbecause she was flying out of the country that same morning and, because ofCOVID-19, she was required to give evidence at trial from overseas with theassistance of an interpreter.[23] We accept Ms Mildenhall's submission, on behalf of the Crown, that the mixedverdicts are rationally explicable on the basis the jury may have been unsure aboutwhat sexual acts had taken place and therefore could not find Mr Sharma guilty ofcertain charges. It is significant that Ms M's account of being digitally penetrated byMr Sharma was strongly supported by the DNA evidence. Insofar as the issue ofconsent was concerned, there was Ms M's direct evidence that she did not consent, herobvious level of intoxication and her evidence of pretending to be unconscious whichmay well have led the jury to conclude there was no reasonable basis for Mr Sharmato believe she was consenting or was in a position to do so.Decision[24] It is not suggested there was insufficient evidence upon which the jury couldconvict Mr Sharma of charge five. Nor is this a situation where the jury must haveaccepted evidence in relation to charge five in order to find Mr Sharma guilty, andrejected that same evidence in relation to the other charges in order to return not guiltyverdicts on those charges. Rather, we consider that, apart from charge five, in respectof which there was corroborative DNA evidence, the jury likely considered there werefrailties in Ms M's evidence which prevented them from being satisfied beyondreasonable doubt on the other charges. The failure to convict on charge six, the secondcharge of unlawful digital penetration in Ms M's bedroom, is explicable because thatwas a late addition to Ms M's narrative raised for the first time at trial, and the forensicevidence could not assist as to whether that type of act had occurred more than once.[25] For these reasons we do not consider the jury's guilty verdict on charge fivewas inconsistent with its not guilty verdicts on the remainder of the charges. Therebeing no inconsistency, Mr Sharma has not shown the verdicts were unreasonable andthis ground of appeal therefore fails.Exclusion of propensity evidence[26] During the course of the trial, Mr Sharma sought to adduce evidence fromMs Teran, a 44-year-old homestay student from Ecuador who had stayed withMr Sharma for a three-week period during the previous year. Her proposed evidencewas to the effect she was alone with Mr Sharma on multiple occasions and theyoccasionally drank alcohol together. She found Mr Sharma to always be respectfuland said he behaved appropriately with her.The trial ruling[27] Judge Earwaker held the evidence did not meet the test for admission, eitheras veracity evidence or propensity evidence.21 The Judge did not consider theevidence that Mr Sharma had been alone with Ms Teran and had not made any sexualadvances towards her was substantially helpful in determining whether or notMr Sharma had engaged in consensual sexual activity with Ms M.22 In terms of thetest for the admission of propensity evidence, the Judge did not consider the proposedevidence had a tendency to support the proposition that, because Mr Sharma hadbehaved appropriately while in a position of trust with Ms Teran, he was less likely tohave behaved in the manner alleged by the Crown in respect of Ms M.23[28] The Judge concluded the fact Mr Sharma made no sexual advances towardsMs Teran, in quite different circumstances, was not relevant to whether or not he had21 Evidence Act 2006, ss 37 and 41. The ruling was made in a minute dated 9 July 2021: R v SharmaCRI-2018-092-13189, 9 July 2021 (Minute No 2 of Judge Earwaker). The Judge subsequentlyissued a reasons judgment: R v Sharma [2021] NZDC 17396 [Admissibility judgment].22 Admissibility judgment, above n 21, at [31].23 At [32]–[33].engaged in consensual sexual activity with Ms M or made sexual advances towardsher. That he may have behaved completely normally and appropriately with Ms Teranwas deemed to be of no assistance and was held to be irrelevant.24Mr Sharma's argument[29] Mr Sharma argued the absence of a complaint by a person in a similar positionto Ms M, with whom he had consumed alcohol and who was therefore potentiallyvulnerable to Mr Sharma's "predation", demonstrated his trustworthiness.Mr Elborough, who presented this part of the appeal, submitted the proposed evidencetended to rebut Ms M's evidence of Mr Sharma having taken advantage of her becauseit showed he was not the type of person who could be expected to offend in the manneralleged by the Crown.Analysis[30] A defendant may offer propensity evidence about themselves that is capable ofdemonstrating their tendency not to act in a particular way.25 However, its admission,like all evidence, is governed by whether it has a tendency to prove or disproveanything that is of consequence to the determination of the proceeding.26 It must havesufficient probative value to outweigh the risk of it having an unfairly prejudicial effecton the proceeding.27[31] As with all questions regarding the admissibility of evidence, it is necessary toidentify the issue to which the evidence is said to have relevance and probative value.At trial, Mr Sharma defended the charges on two bases. In respect of charges two andfour (rape) and six (digital penetration), his defence was that the alleged offending didnot occur. Importantly, however, Mr Sharma accepted some sexual activity did occur:he accepted that the acts giving rise to charges one and three (oral sexual connection)and five (digital penetration) occurred, but defended those charges on the basis theconduct was consensual. Given Mr Sharma accepted some sexual activity had24 At [33]–[34].25 Evidence Act, s 41(1).26 Section 7.27 Section 8.occurred, and the nature and limited ambit of the proposed propensity evidence, wedo not consider it was relevant.[32] Ms Teran's account went no further than suggesting Mr Sharma behavedappropriately with another, albeit more mature, female homestay student with whomhe drank alcohol. Mr Elborough argued that notwithstanding Ms Teran being closerin age to Mr Sharma there were other features which, like Ms M, rendered herinherently vulnerable. She was a woman in a foreign country who spoke English as asecond language and was alone with Mr Sharma in his house. We accept those aspectsmay have some commonality with Ms M's position but they do not speak toMr Sharma's tendency to refrain from engaging in non-consensual sexual activity witha highly intoxicated young woman.[33] Unlike with Ms M, there is no suggestion Mr Sharma engaged in sexualactivity with Ms Teran during her stay with him. Had Mr Sharma maintained theposition he took when first interviewed by the police, that no sexual activity had takenplace between himself and Ms M, we accept Ms Teran's evidence may have hadrelevance and could have been of some probative value as tending to prove he was nota person who would engage in sexual relations with a woman staying at his house asa homestay student. However, by the time of trial, that was no longer Mr Sharma'scase. He denied three of the charges, but he accepted that at least some sexual activityhad occurred after he and Ms M had consumed alcohol (although he denied thisactivity was non-consensual). That scenario is far removed from Ms Teran'sexperience of Mr Sharma and consequently nullifies any logical propensity reasoningthat might otherwise have been available from her proposed evidence.Decision[34] We accept the threshold for relevance is not high and, in the absence of anydiscernible prejudice, the probative value of the proposed evidence need only be slightin order for it to be admitted. However, Mr Sharma's ultimate position was that,despite aspects of Ms M's position at the time that rendered her vulnerable, he engagedin some sexual activity with her. Those being the acknowledged circumstances, we,like the trial Judge, do not consider the evidence had a tendency to prove or disproveanything of consequence to the determination of the proceeding. We therefore do notconsider the Judge erred in declining to admit Ms Teran's evidence.[35] Even had we concluded Ms Teran's evidence was admissible, we consider theproposed evidence was of such limited relevance and had such minimal probativevalue that its exclusion could not reasonably have created any real risk of affecting theoutcome of the trial. We are satisfied the decision not to admit the evidence did notgive rise to a miscarriage of justice.Sentence appeal[36] In arriving at a sentence of two years and four months' imprisonment,the Judge identified three relevant aggravating factors: victim vulnerability,28 breachof trust29 and harm to the victim.30 These factors were assessed as being present to a"lower to moderate degree", placing the starting point in the mid-range of band one ofthe guideline decision of R v AM (two to five years' imprisonment).31 It was acceptedthe offending was opportunistic rather than premeditated.32[37] The Judge adopted a starting point of two years and 10 months' imprisonment33to which a 10 per cent discount was applied for previous good character.34 A furthertwo-and-a-half-month deduction was made in recognition of Mr Sharma's prospectsof rehabilitation and strong motivation not to reoffend, which the Judge balancedagainst his continued denial of the offending.35[38] Mr Sharma relies on a number of grounds in support of his sentence appeal:(a) The starting point was outside the available range.(b) The Judge erred in his approach to the sexual activity that preceded thecharge upon which Mr Sharma was convicted.28 Sentencing notes, above n 1, at [24] and [29].29 At [25] and [29].30 At [26] and [30].31 At [33], citing R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.32 Sentencing notes, above n 1, at [33].33 At [49].34 At [50].35 At [53].(c) Errors were made in the assessment of personal mitigation, in respectof which insufficient credit was given.(d) A sentence of home detention should have been imposed and thepresumption in favour of imprisonment for this type of sexual offendingdisplaced.36The starting point[39] Mr Sharma submitted the appropriate starting point was two and a half years'imprisonment, and the Judge erred by placing the offending at the midway point ofband one of R v AM. It was submitted the relevant sentencing authorities indicated theupper limit of the available range was a starting point of two years and eight months'imprisonment.37 However, that submission appears to have been premised on theJudge having erroneously placed the offending at the midway point of band one ofR v AM. We accept the Judge did say that the offending was midway into band onebut, as noted by the Crown, the "midway point" of band one would have resulted in astarting point of three years and six months' imprisonment. A starting point oftwo years and 10 months was adopted by the Judge, which clearly falls within thelower third of the indicated range in R v AM of between two and five years'imprisonment.[40] R v AM provides that when no aggravating factors are present, a starting pointtowards the bottom end of the band would be appropriate. Where one or more suchfactors are present to a low or moderate degree, a starting point closer to the top of theband is required.38 We accept there was some overlap between the identifiedaggravating features of the victim's vulnerability and breach of trust, but we considerMs M's relative isolation, being a homestay student in a foreign country with limitedEnglish, who was intoxicated and alone in Mr Sharma's house, were salient featuresof this offending. Ms M described Mr Sharma as her host father. Having regard toher level of intoxication on the night, their relative ages and the circumstances of her36 Crimes Act, s 128B.37 Counsel referred to Tanuvasa v R [2019] NZCA 217 and Gonzales v Police [2013] NZHC 1691,where starting points of two years and eight months' imprisonment were adopted.38 R v AM, above n 31, at [114].presence in Mr Sharma's home, the offending did represent a breach of trust. Ms Mis reported as having developed mental health issues as a result of the offending. Shehas been unable to confide in her parents and has suffered significant emotional harm.[41] Mr Chisnall sought to contrast this offending with some cases where slightlylesser starting points have been adopted for offending that involved intrusions into avictim's bedroom which, it was submitted, was more serious than the circumstancesof Mr Sharma's offending.39 However, we accept the Crown's submission that Ms Mwas in a "home environment" at the time of the offending where she was entitled tohave been safe, and we do not consider this to be a material distinguishing feature.[42] We consider the Judge's assessment of the identified aggravating featuresbeing present to a low to moderate degree was accurate. Despite the Judge findingthose factors put the case "midway into band 1", as noted, the actual starting point felltowards the lower end of that band. We conclude the adopted starting point accordedwith the guidance provided in R v AM and was arguably somewhat generous.The approach taken at sentencing to the sexual activity that occurred before the sexualviolation[43] Mr Sharma argued that because he was acquitted on the charge of unlawfulsexual connection that involved contact between his penis and Ms M's mouth, theJudge was obliged to sentence him on the basis that consensual sexual activity hadpreceded the sexual connection for which he was convicted (charge five). Mr Chisnallargued that, in accordance with s 24(2)(c) of the Sentencing Act 2002, the prosecutionwas required to negate beyond reasonable doubt any disputed mitigating fact raisedby the defence relating to the offending. He submitted the Crown had been unable todischarge that burden. Accordingly, a reduction in the starting point was required tomark the mitigatory effect of the consensual sexual activity that preceded the offendingand Mr Sharma's mistaken but unreasonable belief in consent.4039 R v McNicholl CA176/02, 29 October 2002; R v Fisher CA305/91, 18 November 1991; Tanuvasav R, above n 37; and Gonzales v Police, above n 37.40 Counsel referred to Crump v R [2020] NZCA 287, [2022] 2 NZLR 454 at [103]–[109].[44] We do not accept the analysis put forward on behalf of Mr Sharma.Section 24(1) of the Sentencing Act provides that a court may accept as proved anyfact that was disclosed by evidence at the trial. For the purposes of sentencing, thetrial Judge is the thirteenth fact-finder.41 While a Judge must accept as proved all facts,express or implied, that are essential to a finding of guilt,42 there is no requirement thata Judge must accept particular facts as having been proven as the result of an acquittal.[45] In this case, the Judge made certain factual findings at sentencing:43[18] On my assessment of the evidence, I did not accept or do not acceptyour evidence that it was the complainant that initiated the sexual activity. Itis my view, having listened to all of the evidence, that the complainant didindeed black out and the jury simply could not be sure what happened exceptin respect of charge 5, where they were indeed sure. As I say, this is likelydue to the acknowledgement that you could have inserted your fingers in hervagina and also the additional evidence of the DNA in her vagina. So I saythat in terms of my view of the facts and the evidence that I heard and I willproceed to sentence you on that basis.[46] Mr Chisnall submitted the Judge, in coming to that conclusion, failed to haveregard to the burden of proof resting on the Crown, and not Mr Sharma, to negatedisputed mitigating facts. He submitted because the Crown had failed to meet itsburden at trial, it could not disprove beyond reasonable doubt that Mr Sharma had areasonable belief in consent in respect of the oral sex that constituted charge one, ofwhich he was acquitted. However, we do not consider that is so. The Judge expresslyrejected Mr Sharma's evidence that it was Ms M who initiated the sexual activity.Having heard the evidence, the sentencing Judge was entitled to come to thatconclusion. Contrary to Mr Sharma's argument, that finding is not inconsistent withhis acquittal on the preceding charge.[47] It was argued the not guilty verdicts on the other five charges meant the jurymust have considered the sexual acts preceding charge five, which Ms M haddescribed and which Mr Sharma accepted had happened, had taken place with herconsent, or that the jury must have considered he had reasonable grounds to believeshe was consenting. However, the Judge did not accept that was the only conclusion.41 B (CA58/2016) v R [2016] NZCA 432 at [74]–[76], citing R v Connelly [2008] NZCA 550 at [14].42 Sentencing Act 2002, s 24(1)(b).43 Sentencing notes, above n 1.As he observed, the jury could simply have been unsure exactly what took place giventhe level of the Ms M's intoxication, the various accounts given, and the quality ofMs M's narrative. The Judge was entitled to reject Mr Sharma's evidence relating tothe initial sexual activity and, having done so, to be sure for the purposes of sentencing,the contended mitigating fact had been satisfactorily negated. We hasten to add thisdoes not equate to a de facto finding that, contrary to the jury's verdict, the earliercharge alleging non-consensual oral sex was proved. There is no suggestion thesentencing Judge proceeded on such a basis.Reductions for personal mitigation[48] The Judge extended a 10 per cent credit to Mr Sharma for his previous goodcharacter. He noted Mr Sharma was a first-time offender and the offending was outof character.44 It was submitted the deduction was at the lower end of the availablerange notwithstanding it appears this was the credit sought at sentencing to reflect thispersonal mitigating factor. It was suggested on the appeal a 15 per cent discount wouldhave been appropriate.[49] Inevitably, the size of any discount for prior good character will vary accordingto the circumstances of the individual defendant and decisions of this Court reveal arange of deductions in cases of sexual offending.45 The credit afforded to Mr Sharmaaccords with the level regularly extended to offenders where this personal mitigatingfactor is present. We are unpersuaded the discount was inadequate.[50] For completeness, we note Mr Chisnall's observation that the Judge's furtherallowance of a two-and-a-half-month discount for Mr Sharma's rehabilitativeprospects was applied sequentially and did not comply with the sentencing methodoutlined in Moses v R.46 However, that infelicity had little to no material effect on theultimate sentence and no real issue was taken with the adequacy of that credit.44 At [50].45 Parkin v R [2018] NZCA 404 (18 per cent); Rua v R [2014] NZCA 599 (nine per cent); Rana v R[2014] NZCA 468 (seven and a half per cent); and Manawaiti v R [2013] NZCA 88(eight per cent).46 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.Home detention[51] Having concluded no material error was made by the Judge in his approach tosentencing and the final sentence of two years and four months' imprisonment fellwithin the range available to him in the exercise of his sentencing discretion,Mr Sharma is not eligible to be considered for a sentence of home detention.Result[52] The appeal against conviction is dismissed.[53] The appeal against sentence is dismissed.[54] The sentence of imprisonment is to take effect from 22 December 2022.Mr Sharma's bail is to continue in effect until that time.[55] Mr Sharma, who was granted bail pending the outcome of his appeals, isrequired to surrender himself to the Prison Director at Mt Eden Corrections Facilityby 12 pm on 22 December 2022.Solicitors:Crown Law Office, Wellington for Respondent