JONES v R [2022] NZCA 416

JONES v R [2022] NZCA 416 [6 September 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF CD PROHIBITED BY SS 203 AND 204 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA629/2021[2022] NZCA 416BETWEEN MANASSEH APANUI JONESAppellantAND THE QUEENRespondentHearing: 7 June 2022Court: Katz, Thomas and Woolford JJCounsel: R O Gowing and A E de Villiers for AppellantA J Pollett and D P Coulson for RespondentJudgment: 6 September 2022 at 10:00 amJUDGMENT OF THE COURTA The appeal is allowed.B The sentences imposed in the District Court on charges 3, 8 and 12 in respectof CRI-2018-047-570 are set aside.C On charge 3, a sentence of one year and eight months' imprisonment issubstituted.D On charge 8, a sentence of six months' imprisonment is substituted,cumulative on charge 3.E On charge 12, a sentence of one year and seven months' imprisonment issubstituted, to be served concurrently.F The sentence imposed in the District Court on charge 1 inCRI-2020-070-4562 is set aside and a sentence of five months' imprisonmentis substituted, cumulative on charge 8.G The concurrent sentences imposed in the District Court in respect of charges1, 2, 4, 5, 6, 9, 10, 11, 13, 14 and 15 in CRI-2018-047-570 remain in force.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)Introduction[1] Manasseh Jones was convicted of violent offending against two formerpartners, AB and CD. He was also convicted of wilfully attempting to pervert thecourse of justice in relation to the offending against AB,1 and of sexual connectionwith a young person (CD).2[2] Judge Mabey QC sentenced Mr Jones to five years and 10 months'imprisonment.3 Mr Jones now appeals that sentence on the basis that it is manifestlyexcessive.Approach on appeal[3] This first appeal against sentence is brought as of right pursuant to s 244 of theCriminal Procedure Act 2011.4 This Court must allow the appeal only if it is satisfied1 Crimes Act 1961, s 117(e).2 Section 134(1).3 R v Jones [2021] NZDC 12564 [Sentencing notes].4 Mr Jones' appeal was filed out of time. An extension of time to appeal was granted by Collins J:Jones v R CA629/2021, 2 February 2022 (Minute of Collins J). Mr Jones has a right of appeal tothis Court in respect of category 3 offences to which he pleaded not guilty, and of which he wasconvicted following jury trial: Criminal Procedure Act 2011, ss 244 and 247. We note thatMr Jones pleaded guilty to several of the charges he faced, and that one charge to which Mr Jonespleaded guilty was a category 2 offence (wilful damage). This Court has jurisdiction to hear thesentence appeal on those charges, as Mr Jones has a related right of appeal in respect of thosecharges: Criminal Procedure Act, ss 320(1)(a)(ii) and 321.that there was an error in the sentence and a different sentence should have beenimposed.5 Otherwise, the appeal must be dismissed.6The offendingOffending against AB[4] The violence charges relating to AB arose from an incident that occurred onthe night of 16–17 December 2018. Mr Jones was aged 20 at the time. In hissentencing notes, the Judge summarised what took place that evening as follows:[10] Your offending against [AB] arose from a short relationship whichyou had with her and which escalated in December 2018, to events where shewas driving in a certain direction. You cut her off. She got out of her car.You dragged her back to the car. You smashed her car with a weapon.You forced her into the front seat of your car. You drove to Ōpōtiki assaultingher as she sat next to you. She tried to escape but you held her in the car.She made excuses to get out but you ignored her. The assaults continued onanother part of the road when she ran away but you tackled her to the ground.[5] Mr Jones pleaded guilty to three of the violence charges relating to AB at theoutset of trial — two charges of male assaults female (dragging AB and headbuttingher);7 and intentionally damaging AB's motor vehicle.8 Mr Jones was subsequentlyfound guilty at trial of four additional charges — kidnapping AB (dragging her intohis car and driving off);9 two further charges of male assaults female (hitting her withhis hand while in the car and tackling her to the ground when she was trying to runaway);10 and one charge of assault with a weapon (hitting AB with a pole when he wasalso smashing her car).11[6] AB made a police complaint shortly after these events. Mr Jones sent her anumber of messages telling her to withdraw her complaint. He threatened to commitsuicide if she did not. He told AB what she should say and said that he did not want5 Criminal Procedure Act, s 250(2).6 Section 250(3).7 Crimes Act, s 194(b).8 Section 269(2)(a).9 Section 209.10 Section 194(b).11 Section 202C(1)(a).to go to jail. Mr Jones pleaded guilty to a charge of attempting to pervert the courseof justice at the outset of trial in relation to this conduct.Offending against CD[7] Mr Jones' relationship with CD commenced about a year after the offendingagainst AB. CD was aged 14 at the time their relationship began, and Mr Jones wasaged 21. The Judge summarised Mr Jones' violent offending against CD as follows:[14] As with your relationship with [AB], violence came into thepicture. On a particular occasion you drove her back to your address tospend the evening together. You were intoxicated. When driving home youdrove erratically and at increased speed, you cut corners, you were on thewrong side of the road and you frightened her. You laughed when sheexpressed her fear and when you got home you made accusations of infidelityand cheating [16] Back at the address in Ōpōtiki, and in pursuit of your irrationalenquiries of infidelity by a 14 year old girl you took her phone. You continuedto question her. Overnight it went on. She tried to get her phone back.You assaulted her. She tried to get away. You assaulted her. You threatenedto shoot her family. You threatened to kill yourself and her as you drove herback to her property. [8] At the outset of his trial Mr Jones pleaded guilty to a charge of wilful damage(smashing CD's iPhone) in relation to this incident.12 At trial he was found guilty offive additional charges:(a) two charges of male assaults female (holding his fist at CD in athreatening manner and applying pressure to CD's throat and neckwhen she tried to get her cell phone back);13(b) kidnapping (ordering CD to get into his vehicle and driving her to hisaddress);14(c) threatening to kill CD if she blocked him on Facebook;15 and12 Summary Offences Act 1981, s 11(1)(a).13 Crimes Act, s 194(b).14 Section 209.15 Section 306(1)(a).(d) threatening to do grievous bodily harm (threatening to drive the car offthe bank into the river if CD did not stop screaming).16[9] At the outset of his trial on the violence charges, Mr Jones also pleaded guiltyto a representative charge of sexual connection with a young person (CD). The trialdate in relation to the sexual offending (which had been severed from the violencecharges relating to AB and CD) had not yet been allocated.The sentencing process in the District Court[10] The Judge adopted a starting point of three years and six months' imprisonmentfor the violent offending against AB.17 The Judge considered that, for the charge ofattempting to pervert the course of justice, a starting point of around two years wouldhave been appropriate on a standalone basis. He reduced this to a nine-month uplift,however, to account for totality. This produced an overall starting point of four yearsand three months' imprisonment for the totality of the offending against AB.18[11] The Judge adopted a starting point of two years and six months' imprisonmentfor the violent offending against CD.19 He added a further three years to this in respectof the charge of sexual connection with a young person. This resulted in a globalstarting point of five years and six months' imprisonment for all of the offendingagainst CD.20 This was then reduced by two years, to three years and six months'imprisonment, to reflect the principle of totality.21 The final starting point wastherefore one of seven years and nine months' imprisonment (four years and threemonths for the offending against AB, plus three years and six months for the offendingagainst CD).22[12] No discount was afforded for the fact that Mr Jones had pleaded guilty to someof the charges at the outset of the violence trial. A global discount of 25 per cent was16 Section 306(1)(a).17 Sentencing notes, above n 3, at [9]–[10].18 At [12].19 At [17]. It appears that the Judge was referring to the appropriate starting point on the violencecharges against CD, described at [16]. The reference to "the sexual offending" at the beginningof [17] appears to be an error.20 At [18].21 At [18]–[19] and [33].22 At [19] and [33].applied, however, to reflect the matters set out in a report prepared pursuant to s 27 ofthe Sentencing Act 2002 (including Mr Jones' immaturity), remorse, and rehabilitativeefforts.23 Applying this discount to the cumulative starting point of seven years andnine months' imprisonment resulted in an end sentence of five years and 10 months'imprisonment.24Was the starting point for the offending against AB too high?[13] Mr de Villiers, counsel for Mr Jones, submitted that the starting point ofthree years and six months' imprisonment for the violent offending against AB wastoo high, with reference to the decisions of Cassidy-Gugich v R,25 Joe v R26 andHayes v R.27 He submitted that the appropriate starting point was two years and ninemonths' imprisonment. The Crown, on the other hand, submitted that the starting pointwas within range, with reference to the cases of Moffatt v R,28 Mahutoto v Police29 andR v Nevin.30[14] The lead violence offence is the kidnapping charge (the other violencecharges were sentenced concurrently). There is no guideline decision in relation tokidnapping, due to the wide range of circumstances in which kidnapping can arise.While it is important not to understate the seriousness of Mr Jones' offending, we notethat many cases of kidnapping in a domestic context involve conduct that isconsiderably more serious, and prolonged, than what took place here (which occurredover a period of about a couple of hours on one night).[15] Taking into account all of the circumstances of this case, we acceptMr de Villiers' submission that a starting point of two years and nine months'imprisonment would more appropriately reflect Mr Jones' level of culpability inrelation to this charge.23 At [28]–[29].24 At [34]–[37].25 Cassidy-Gugich v R [2016] NZHC 3027.26 Joe v R [2019] NZCA 394.27 Hayes v R CA171/06, 20 July 2006.28 Moffatt v R [2015] NZHC 107.29 Mahutoto v Police HC Auckland CRI-2011-404-111, 20 June 2011.30 R v Nevin HC Auckland CRI-2005-004-18658, 12 September 2007.Were appropriate discounts applied?[16] The Judge applied a global discount of 25 per cent to reflect the personalmitigating factors referred to in the s 27 report, Mr Jones' remorse and hisrehabilitative efforts. He declined to award a further discrete credit for youth as, in hisview, there was some overlap in the credit for immaturity and the matters set out inthe s 27 report.31[17] Mr de Villiers submitted that a 45 per cent discount for personal mitigatingfactors is appropriate, calculated as follows:(a) 20 per cent for the personal background factors referred to in the s 27report;(b) five per cent for remorse;(c) five per cent for rehabilitative efforts; and(d) 15 per cent for youth.[18] Mr de Villiers further submitted that a discount of 15 per cent (approximatelyfive months) should have been deducted from the starting point adopted for thesexual offending, to reflect Mr Jones' early guilty plea in relation to that offending.[19] The Crown submitted that the discount of 25 per cent for personal mitigatingfactors was appropriate and in line with recent authority, in particular Westall v R32 andWilliams v R.33 Further, the Judge's approach of applying a discount for youth and thes 27 report together was appropriate on the basis that the two factors overlap. A globaldiscount therefore avoided "discount creep".3431 Sentencing notes, above n 3, at [28]–[29].32 Westall v R [2021] NZHC 3440 (global discount of 25 per cent).33 Williams v R [2020] NZHC 3104 (global discount of 20 per cent).34 The Crown referred to R v LB [2020] NZHC 94 at [53], in which Downs J defined "discount creep"as "a phenomenon by which closely related or interrelated mitigating features are artificiallydisaggregated, then each awarded full and discrete discount to achieve a desired result".Mr Jones' personal circumstances[20] Three reports before the Court contain background information regardingMr Jones' personal circumstances. First, there is the s 27 report. Second,Dr Peta Ruha, with input from Mr Jones' whānau, has prepared a helpful reportentitled "Whānau Ora Report". Third, the pre-sentence report prepared by theDepartment of Corrections contains further relevant information.[21] Mr Jones is of Māori descent and is affiliated with Whakatohea iwi through thematernal side of his family and Nga iwi o Tūhoe through his paternal family. The s 27report writer summarised Mr Jones' background as including "a distinct culture offamily violence, a dysfunctional relationship with his father, social deprivation,drug and alcohol dependence and, later, gang association". Mr Jones' father was aged19 and his mother only 15 when he was born. They subsequently had anotherfour children.[22] During his childhood Mr Jones was subjected to considerable violence,intimidation and controlling behaviour by his father. As the eldest child he borethe brunt of much of the family violence. He was also traumatised by witnessingongoing and repeated extreme violence being meted out to his mother, who was alsosubjected to other forms of coercive and controlling behaviour. The s 27 report writerexpresses the view that Mr Jones "has learnt violent, controlling and manipulativebehaviour from his father and has continued to weave this into his own life and hisown relationships". In our view that is a fair assessment.[23] Growing up in a violent and dysfunctional home had a devastating impact onMr Jones, who attempted suicide several times in his early teenage years. At the ageof 14, unable to cope with the violence at home any longer, Mr Jones ran away.He lived on the streets for about nine months and started using cannabis, alcohol andmethamphetamine during this period. Subsequently, Mr Jones relocated to live withhis maternal grandmother and tried to return to school. The transition proved to betoo difficult, however, and he was excluded.[24] When he was aged about 16, Mr Jones had what appears to have been his firstserious relationship. He was devastated when it ended as it had provided "a sense ofstability and belonging for him". He started to self-harm. Mr Jones' difficulty withintimate relationships has been a continuing theme since then, and this theme alsounderpins his current offending.[25] Perhaps surprisingly, given his difficult background, Mr Jones displaysconsiderable insight into the fact that he lacks relationship skills and his relationshipshave been dysfunctional. In his discussions with the s 27 report writer he admittedthat in most, if not all, of his intimate relationships the issues that have arisen havebeen caused by him. He describes his partners in positive terms, referring to them aswell-spoken, kind, and attractive. He notes that none of them have been drug users.Of himself, he says:I remind myself of my Dad and I'm really controlling. My behaviour, that'swhat's toxic. Yep I'm what's wrong with the relationship. I go out with thesekind girls and I'm "out the gate" insecure and paranoid, scared and vulnerable.[26] Mr Jones says that he would like to have a relationship where he is loved andcared for, but that his paranoid and controlling behaviour usually leads to his partnersnot wanting to continue a relationship with him. This further perpetuates his feelingsof jealousy and insecurity. He is keen to break the cycle of dysfunction and violence.[27] Mr Jones' level of insight is further reinforced by the pre-sentence report, fromwhich it is apparent that Mr Jones has considerable insight into his offending and feelsgenuine remorse. He acknowledged his own insecurities in relationships and describeshis offending as "outrageous". He says that he has reflected on his behaviour while inprison, and the impact it has had on his victims.[28] As noted above, Mr Jones started drinking alcohol at a young age.The pre-sentence report writer notes that he has possible alcohol dependence issues.Whether or not that is so, it is apparent from the s 27 report that "alcohol is the drugthat is the most problematic" for Mr Jones. He is aware of this and acknowledges thatwhen he is intoxicated he is far more likely to become paranoid, controlling, angryand/or distressed. A family member notes that he makes "stupid decisions" when heis under the influence of alcohol and/or drugs.[29] Given this background, Mr Jones' risk of re-offending and his risk of harm wasassessed by the pre-sentence report writer as high. The report writer noted, however,that Mr Jones is motivated to engage in rehabilitative programmes both in prison andwhen released into the community.[30] The Whānau Ora report identifies that Mr Jones has many strengths. He is saidto be generally sociable, kind, caring, intelligent, gentle and a good communicator.He can also suffer from severe anxiety, however, and when in this state can be volatileand quick to anger. He has low self-esteem due to past trauma. In relationshipsMr Jones can be very possessive. The lack of a relationship with his father is seen bythe extended whānau as a key issue, giving rise to abandonment issues and a difficultyin forming healthy relationships with women. Mr Jones clearly has a very supportivewhānau on his mother's side. His maternal grandparents are apparently bothsocial workers who are widely respected in their local community. They were keen tohave Mr Jones live with them on an electronically monitored sentence. That was notpossible, however, due to the seriousness of his offending.What is the appropriate discount(s) for personal factors?[31] The Judge applied a global discount of 25 per cent to reflect the matters set outin the s 27 report, remorse, and Mr Jones' rehabilitative efforts. In our view, however,this discount was insufficient. We consider that the discount applied by the Judgefailed to give appropriate recognition to the full range of mitigating factors in this case.[32] The personal background factors we have summarised above warrant a discretesentencing discount of 20 per cent, particularly as there is a very clear causal nexusbetween Mr Jones' violent and dysfunctional upbringing and his current offending.35[33] Mr Jones is also entitled to some additional discount for youth, remorse andrehabilitative prospects. He was aged between 20 and 21 at the time of the offendingand clearly lacked maturity.36 Against this, he is not a first-time offender, and hasrelevant criminal history. As we have noted above, however, Mr Jones has35 See generally Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [162].36 See Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77]–[90] and [98].demonstrated a high degree of insight into his offending. He is motivated to try andchange. His level of insight increases his rehabilitative prospects. Mr Jones has alsodemonstrated genuine remorse and takes full responsibility for his actions. In our viewa further discount of 15 per cent is appropriate to reflect Mr Jones' youth, genuineremorse, and rehabilitative prospects. We consider that these factors are worthy ofdistinct recognition and do not present a risk of double counting.[34] The total discount available for personal mitigating factors is therefore35 per cent, rather than the 25 per cent applied in the District Court.Should the Judge have applied one or more guilty plea discounts?[35] As noted at [5] above, Mr Jones pleaded guilty to three of the violence chargesrelating to AB at the outset of trial. Mr Jones was subsequently found guilty at trialof three additional violence charges. Although the guilty pleas were belated, theynarrowed the scope of the Crown case. Mr Jones is entitled to at least some credit forthis.37 In our view a five per cent discount to the starting point for the violent offendingagainst AB is appropriate. This takes into account that the guilty pleas were belated,and related to only three of the six violence charges he was ultimately convicted of inrelation to AB.[36] Mr Jones also pleaded guilty at the outset of trial to wilful damage (smashingCD's iPhone) in relation to the violent offending against CD. At trial he was foundguilty of five further charges relating to the violent offending against CD (as set out at[7] and [8] above). Hence, in relation to CD, Mr Jones only pleaded guilty to onerelatively minor charge, and it was at the outset of trial. In our view the Judge did noterr in failing to discount the starting point for the violent offending against CD toreflect this, as any discount would have been de minimis in the circumstances.[37] Mr Jones also pleaded guilty to the perversion of justice charge in relation tothe offending against AB at the outset of trial. This was a discrete charge, involvingseparate evidence. In our view a 10 per cent discount is appropriate to reflectMr Jones' guilty plea to that charge.37 See Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [57], [65] and [70]–[77].[38] A more significant guilty plea discount is warranted for Mr Jones' guilty pleato the charge of sexual connection with a young person. That charge had been severedfrom the violence charges. At the time of Mr Jones' trial on the violence charges,no trial date had yet been set for the alleged sexual offending. By pleading guiltyMr Jones spared CD from having to go through a second trial, at which she wouldhave had to give evidence of a highly personal nature, focussed on her sexualrelationship with Mr Jones. It is our view that a guilty plea discount of 20 per cent isappropriate in relation to this charge.Were the adjustments for totality sufficient?[39] The final issue is whether the adjustments made by the Judge to reflect totalitywere sufficient. Although this was not a focus of Mr de Villiers' written submissions,in oral submissions (partly in response to questioning from the Court) Mr de Villierssubmitted that the overall adjustments for totality were insufficient, and that a moreappropriate approach in this case would have been for the violent offending to havebeen sentenced concurrently rather than cumulatively.Multiple offending — sentencing principles[40] Sentencing for multiple offending can be a challenging process. Suchsentences can be structured in different ways. In R v Xie this Court endorsed38 thecontinuing application of the following key principles of sentencing for multipleoffending stated in the earlier cases of Williams v R39 and Barker v R:40(a) With multiple offences the sentence must reflect the totality of theoffending.41(b) In respect of multiple offences the Court will not insist that the totalsentence be arrived at in any particular way.42 Sometimes there isadvantage in imposing cumulative sentences on some or all of the38 R v Xie [2007] 2 NZLR 240 (CA) at [16]–[18].39 Williams v R CA91/00, 31 May 2000.40 Barker v R CA57/01, 30 July 2001.41 At [10].42 At [10]; and R v Williams, above n 39, at [11].charges, whereas others are more appropriately dealt with by one majorsentence which subsumes all matters, with concurrent sentencesimposed.43(c) The total sentence, however, must represent the overall criminality ofthe offending and the offender.44[41] The Court noted in Xie that these principles survive the enactment of theSentencing Act, and indeed are endorsed by it:45Having endorsed it, Parliament then goes on in ss 84 and 85 [of theSentencing Act] to describe when concurrent sentences and cumulativesentences "are generally appropriate". The guidelines do not have the effectof trumping the central principle of sentencing for multiple offending, namelythat the total sentence must represent the overall criminality of the offendingand the offender.[42] Section 84 of the Sentencing Act provides guidance as to the generalcircumstances in which it will be appropriate to impose cumulative or concurrentsentences:84 Guidance on use of cumulative and concurrent sentences ofimprisonment(1) Cumulative sentences of imprisonment are generally appropriate ifthe offences for which an offender is being sentenced are different inkind, whether or not they are a connected series of offences.(2) Concurrent sentences of imprisonment are generally appropriate if theoffences for which an offender is being sentenced are of a similar kindand are a connected series of offences.(3) In determining for the purpose of this section whether 2 or moreoffences committed by 1 offender are a connected series of offences,the court may consider—(a) the time at which they occurred; or(b) the overall nature of the offending; or(c) any other relationship between the offences that the courtconsiders relevant.43 Williams v R, above n 39, at [11].44 Barker v R, above n 40, at [10].45 R v Xie, above n 38, at [18].[43] While s 84 provides general guidance on the approach to be adopted whenconsidering cumulative or concurrent sentences of imprisonment, s 85 emphasises thatthe court must also have regard to the totality of the offending:85 Court to consider totality of offending(1) Subject to this section, if a court is considering imposing sentences ofimprisonment for 2 or more offences, the individual sentences mustreflect the seriousness of each offence.(2) If cumulative sentences of imprisonment are imposed, whetherindividually or in combination with concurrent sentences, they mustnot result in a total period of imprisonment wholly out of proportionto the gravity of the overall offending.(3) If, because of the need to ensure that the total term of cumulativesentences is not disproportionately long, the imposition of cumulativesentences would result in a series of short sentences that individuallyfail to reflect the seriousness of each offence, then longer concurrentsentences, or a combination of concurrent and cumulative sentences,must be preferred.(4) If only concurrent sentences are to be imposed,—(a) the most serious offence must, subject to any maximumpenalty provided for that offence, receive the penalty that isappropriate for the totality of the offending; and(b) each of the lesser offences must receive the penaltyappropriate to that offence.[44] The twin requirements in s 85 of meaningful individual sentences, subject onlyto the totality principle, override the general guidance given by s 84 as to whenconcurrent and cumulative sentences are to be imposed.46 Hence:47[a]s [a] general rule consecutive sentences should not be such as to resultin an aggregate term wholly out of proportion to the gravity of the offences,viewed as a whole.[45] Where the totality of the sentences imposed appears to be excessive, and someadjustment is seen as necessary on appeal, it will usually be preferable for thatadjustment to be made by ordering sentences to run concurrently, or by a combinationof concurrent and cumulative sentences, rather than by reducing the length of the46 O'Leary v R CA258/05, 3 March 2006 at [23].47 R v Bradley [1979] 2 NZLR 262 (CA) at 263.individual sentences and permitting them to remain consecutive.48 This reflects,amongst other things, that the use of cumulative sentences in such cases may result inthe imposition of inappropriately short sentences in order to keep the final sentencewithin the totality principle. This may create the wrong public impression as to thetrue gravity of the component offences. Difficulties may also arise in the event of asuccessful conviction appeal on one (or some) of the charges if the total sentencecomprises a number of short consecutive sentences.49Were sufficient adjustments made for totality?[46] The Judge applied a combination of concurrent and cumulative sentencingapproaches. The Judge made two discrete adjustments for totality (one was applied tothe perversion of justice charge and the other to the global starting point for theoffending against CD). In our view, however, the adjustments that were made fortotality were insufficient. The end result of the Judge's approach was a globalstarting point of seven years and nine months' imprisonment. This was too high in allthe circumstances and resulted in an end sentence that did not accurately represent theoverall criminality of the offending and the offender with regard to the facts that: theviolent offending was of limited duration, comprising two discrete (but neverthelessvery serious) incidents; the sexual offending related to consensual (albeit unlawful)sexual activity; and Mr Jones comes from a severely disadvantaged background,which has a clear causal nexus to his offending. Given Mr Jones' background, youth,level of insight, and considerable extended whānau support, it is our view that primacyshould have been given to the principle of rehabilitation when structuring Mr Jones'overall sentence.50[47] As noted above, there are a number of ways in which sentencing for multipleoffences can be approached. In accordance with the principles we have set out at [45]above, it is our view that the violent offending against AB and CD should be sentencedconcurrently rather than cumulatively. Specifically, if we were to further reduce the48 Geoff Hall (ed) Hall's Sentencing (online ed, LexisNexis) at [SA85.4], citing R v Brown (1969)54 Cr App R 176 (CA); R v Simpson [1972] Crim LR 383; and R v Williams [1988] 1 NZLR 748(CA).49 Hall's Sentencing, above n 48, at [SA85.4], citing R v Smith [1975] Crim LR 468.50 See Sentencing Act 2002, ss 7(1)(h) and 8(i).global starting points for the violent offending against each victim in order to maintaina cumulative sentencing approach that is consistent with totality, that may result inindividual sentences that are inappropriately short. That would give the wrongimpression as to the true gravity of the offending. Instead, the principle of totality canbest be achieved in this case by greater use of concurrent rather than cumulativesentences, structured as follows:(a) As set out at [15] above, it is our view that the appropriate globalstarting point for the violent offending against AB is two years and ninemonths' imprisonment. For the reasons we have set out at [31]–[35]above, this should be discounted by 40 per cent51 to one year and eightmonths' imprisonment.(b) The Judge was correct to determine that the appropriate starting pointfor the violent offending against CD was two years and six months'imprisonment. For the reasons set out at [31]–[34] and [36] above, thisshould be discounted by 35 per cent52 to one year and seven months'imprisonment, to be served concurrently with the sentence for theviolent offending against AB.(c) An 11-month starting point is appropriate for the perversion of justiceoffending.53 For the reasons set out at [31]–[34] and [37] above, thisshould be discounted by 45 per cent.54 This results in an end sentenceof six months' imprisonment. Given the different nature of theoffending, this sentence should be served cumulatively.51 A 35 per cent discount for personal mitigating factors and a five per cent guilty plea discount.52 No guilty plea discount applies to the violent offending against CD.53 We take into account that there were several messages over a period of three days. They did notinclude any direct threats against the victim or anyone associated with her. Rather, they wereemotionally manipulative, as Mr Jones expressed his fears of going to prison and threatenedsuicide.54 A 35 per cent discount for personal mitigating factors and a 10 per cent guilty plea discount.(d) The sexual offending, given its different nature, should alsobe sentenced cumulatively. In our view the appropriate starting pointis one year's imprisonment.55 It is necessary to discount this by55 per cent for the reasons set out at [31]–[34] and [38] above.56 Thisresults in an end sentence on the sexual connection charge of fivemonths' imprisonment.[48] The effective end sentence on this approach is two years and seven months'imprisonment. In our view this sentence appropriately reflects the totality of theoffending and does not require any further totality adjustment.[49] This approach does not require any amendment to the six-month concurrentsentences imposed by the Judge in relation to each of charges 1, 2, 4, 5, 6, 9, 10, 11,13, 14 and 1557 in CRI-2018-047-570 and we therefore do not propose to set asidethose sentences. It is, however, necessary to impose new sentences in respect ofcharges 3, 8 and 12 in CRI-2018-047-570, as well as charge 1 in CRI-2020-070-4562,being the charge of sexual connection with a young person (CD).Result[50] The appeal is allowed.[51] The sentences imposed in the District Court in respect of charges 3, 8 and 12in CRI-2018-047-570, as well as charge 1 in CRI-2020-070-4562, are set aside.55 With reference to the factors identified in Philpot v R [2015] NZCA 212 at [40], n 17, we note thatthe victim was aged 14, but not otherwise especially vulnerable; there was no breach of trust;Mr Jones does not appear to have used alcohol or drugs to facilitate the offending; the duration ofthe sexual relationship was relatively limited (24 days); and there was no demeaning or degradingsexual behaviour. We also note Mr Jones' relative youth (he was aged 21 at the time of theoffending) and immaturity, and that the sexual activity took place within the context of aconsensual boyfriend/girlfriend relationship (rather than a more predatory/exploitativerelationship with a large age disparity). The impact on the victim is not known, as she has notprovided a victim impact statement. We note, however, that it appears from the evidence that thevictim was relatively sophisticated for her age including (amongst other things) expressing apreference for a "no strings" relationship. This does not, of course, excuse or justify Mr Jones'criminal conduct.56 A 35 per cent discount for personal mitigating factors and a 20 per cent guilty plea discount.57 Although charge 15 (which resulted in Mr Jones' conviction for assaulting AB with a pole whenMr Jones was smashing her car) is not expressly referred to in the Judge's sentencing notes, it isapparent from the warrant of commitment that Mr Jones was sentenced to a concurrent term ofsix months' imprisonment in relation to this charge.[52] The following sentences are substituted:(a) On charge 358 we impose a sentence of one year and eight months'imprisonment.(b) On charge 859 we impose a sentence of six months' imprisonment,cumulative on charge 3.(c) On charge 1260 we impose a term of one year and seven months'imprisonment, to be served concurrently.(d) On charge 161 in CRI-2020-070-4562 we impose a term of five months'imprisonment, cumulative on charge 8.[53] The concurrent sentences imposed in the District Court in respect of charges1, 2, 4, 5, 6, 9, 10, 11, 13, 14 and 15 in CRI-2018-047-570 remain in force.Solicitors:Gowing & Co Lawyers Ltd, Whakatāne for AppellantCrown Solicitor, Tauranga for Respondent58 Kidnapping of AB.59 Attempting to pervert the course of justice in relation to the offending against AB.60 Kidnapping of CD.61 Sexual connection with a young person (CD).