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NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA225/2017[2018] NZCA 518BETWEEN PAUL MICHAEL SPEARPOINTAppellantAND THE QUEENRespondentHearing: 6 and 8 November 2018Court: Clifford, Dobson and Mander JJCounsel: R A Harrison for AppellantK S Grau for RespondentJudgment: 22 November 2018 at 3.15 pmJUDGMENT OF THE COURTA The appeal against conviction is allowed in part.B The convictions on the five charges of sexual violation (charges 1, 2, 3, 4and 5 in the Crown's Charge Sheet) are quashed. Convictions on thecharges of sexual connection with a young person (charges 1A, 2A, 3A, 4Aand 5A in the Crown's Charge Sheet) are entered in substitution.C The strike warning issued on 2 March 2017 in respect of charges 1, 2, 3, 4and 5 is cancelled.D The sentence of 10 years and two months' imprisonment imposed inrespect of charges 1, 2, 3, 4 and 5 in the Crown's Charge Sheet arequashed. On each of charges 1A, 2A, 3A, 4A and 5A in the Crown'sCharge Sheet, Mr Spearpoint is re-sentenced to concurrent terms of fouryears' imprisonment.E The convictions on charges 6, 7 and 8 stand, the appeal against themhaving been abandoned.F The appeal against sentence is allowed.G The sentence of six years' imprisonment imposed in respect of thecharges 6, 7 and 8 in the Crown's Charge Sheet are quashed. In theirplace, concurrent sentences of two years' imprisonment are imposed inrespect of each charge.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] On 8 November 2018, we issued a results judgment allowing this appeal.We quashed Mr Spearpoint's convictions on five charges of sexual violation, andentered convictions on charges of sexual connection with a young person insubstitution. We also quashed the sentences imposed by the lower Court andre-sentenced Mr Spearpoint to four concurrent terms of four years' imprisonment andthree concurrent terms of two years' imprisonment. We now give our reasons for thosedecisions.[2] The appellant, Paul Spearpoint, was convicted after trial on five charges ofsexual violation (three of which were representative) two representative charges ofdoing an indecent act on a young person, and one representative charge of indecentassault on a young person. Verdicts were not required to be returned by the jury onfive charges of sexual connection with a young person laid in the alternative to thesexual violation charges. He was sentenced by Judge Kiernan to 10 years andtwo months' imprisonment.1[3] Mr Spearpoint has appealed his convictions on the sexual violation charges.The Crown accepts that because of material misdirections by the trial Judge his appealmust be allowed. The Crown proposes that a new trial not be directed on those chargesbut that convictions be entered on the alternative charges of unlawful sexualconnection with a young person.2 Mr Spearpoint is agreeable to that course andabandons his other grounds of appeal.Factual background[4] In early 2014, the complainant came to live with Mr Spearpoint because of thedifficult and unsatisfactory living arrangements with her own family. The 14-year-oldcomplainant was a friend of Mr Spearpoint's daughter, and Mr Spearpoint knew thecomplainant's family, in particular her father.[5] Mr Spearpoint first had sexual intercourse with the complainant a week beforeher 15th birthday in April 2014. He continued to do so on an intermittent basis overthe following two months until she moved out of his house. During that timeMr Spearpoint engaged in anal and oral sex with the complainant.[6] The complainant's account was that Mr Spearpoint pressured her for sex untilshe finally gave in, and that she would go along with having sex with him to make himhappy because she did not like making him mad. The complainant also gave evidenceof Mr Spearpoint purchasing lingerie for her, making her watch pornographic DVDsand asking her to replicate sexual acts. She showered with him and he discussedsexual education with her.[7] At trial, Mr Spearpoint denied the sexual activity. He gave evidence and calledhis daughters and ex-wife in an endeavour to show a lack of opportunity to offend.He claimed the complainant's parents had put her up to making a false complaint and1 R v Spearpoint [2017] NZDC 7412 [sentencing notes].2 Criminal Procedure Act 2011, s 234(2).that the allegations were falsely made to facilitate her being placed with othercaregivers.The trial error[8] The trial Judge, in her summing-up, initially directed the jury regarding theelements of sexual violation in the correct way. However, when providing specificdirections in relation to the question trails on the sexual violation charges the Judgemade fundamental errors concerning the element of consent. In both the question trailand the Judge's accompanying directions the jury were told that should they be surethe complainant did not consent Mr Spearpoint was required to be found guilty.The question trail and the Judge's directions failed to instruct the jury to considerwhether the Crown had proved beyond reasonable doubt that Mr Spearpoint had noreasonable belief in consent.[9] The Judge's direction and the question trail erroneously only required the juryto go on to consider reasonable belief in consent if they were not sure the complainantdid not consent. As acknowledged by the Crown, if the jury were not sure thecomplainant did not consent, they should have been directed to find Mr Spearpoint notguilty.[10] Because of this fundamental error, it is accepted the appeal must be allowed inrespect of the five sexual violation charges.Disposition of the conviction appeal[11] Section 234 of the Criminal Procedure Act 2011 provides as follows:234 Conviction and sentence for different offence may be substituted(1) Subsection (2) applies if a person was found guilty at trial of anoffence (offence A) and the first appeal court allows the convictedperson's appeal against conviction for that offence.(2) The first appeal court may direct that a judgment of conviction for adifferent offence (offence B), including an offence that the trial courtcould, in accordance with section 136(1), have substituted for offenceA, be entered if satisfied that—(a) the person could have been found guilty, at the person's trialfor offence A, of offence B; and(b) the trial judge or the jury, as required, must have been satisfiedof facts that prove the person guilty of offence B....(5) On making a direction under subsection (2) or (4), the first appealcourt may—(a) impose a sentence for offence B (whether more or less severe)that is allowed by law; or(b) remit the proceeding to the court that imposed the sentencefor offence A and direct that court to take the action describedin paragraph (a).[12] The parties are agreed, and we are satisfied, that — consent not being anelement of the offence — Mr Spearpoint could have been found guilty at his trial ofthe alternative charges of sexual connection with a young person. The jury must havebeen sure that the sexual acts upon which each of the sexual violation charges werebased (both discrete and representative) had occurred in order to find those chargesproved. No issue arises regarding the age of the complainant who was clearly a youngperson at the time.[13] In those circumstances, Mr Spearpoint accepts that convictions can be enteredon the five alternative charges of sexual connection with a young person. We aresatisfied the statutory criteria for taking that course has been established. We directconvictions for those substitute offences be entered.[14] Having made that direction, we may impose a sentence for the substituteoffences. The parties have requested we undertake that exercise.[15] The convictions on the two representative charges of doing an indecent act ona young person and the one representative charge of indecent assault on a young personremain undisturbed.Re-sentencing on substituted charges[16] The sexual activity Mr Spearpoint engaged in with the complainant and whichthe charges reflect can be summarised as follows:(a) sexual intercourse in the week before the complainant's 15th birthday;(b) repeated acts of sexual intercourse during the remaining period thecomplainant stayed with Mr Spearpoint. The complainantapproximated in her evidence that this occurred about twice a week,although there were periods when she was absent from the address;(c) anal sex at least on more than one occasion;(d) oral sex on one occasion, with her mouth on his penis, and at least ontwo occasions connection between his mouth and her genital area;(e) grabbing her genitalia and bottom on at least one occasion;(f) masturbating in front of her on at least one occasion; and(g) forcing the complainant to masturbate in front of him.[17] The impact of the offending on the complainant who was 17 years of age bythe time of the trial, was considerable. At the time of the offending she suffered minorpain and bleeding. The complainant suffered longer term psychological difficulties.These include ongoing sleeping problems and a need for counselling.The complainant described how school was difficult for her because she "had to weara mask and pretend it was not happening".[18] In sentencing, the Judge noted how the complainant described Mr Spearpointas "the best person" in her life at the time. She believed he was a good person, anddespite the ongoing sexual abuse she remained in his home. The observation of thetrial Judge at sentencing was that, while the complainant was much older by the timeof the trial (17 years), she presented as immature and vulnerable.3The aggravating features of the offending[19] The aggravating features of Mr Spearpoint's offending are readily discernible.They include:(a) The two-month period over which the offending occurred.(b) The premeditation and the direction of the complainant byMr Spearpoint to facilitate the offending.(c) The vulnerability of the complainant as a result of her age and herpersonal and family circumstances. The complainant waspsychologically fragile. She had demonstrated suicidal tendenciesprior to going to live with Mr Spearpoint and had little to no family orsocial support. She was largely reliant on Mr Spearpoint during thistime.(d) The ongoing and likely long-term and profound harm caused by theoffending.(e) The scale and ambit of the offending which involved various andmultiple penetrative sexual acts.(f) The obvious breach of trust. Despite being aware of the complainant'svulnerability and her reliance upon him, Mr Spearpoint, who by hisown admission treated her as a daughter, breached her trust.3 Sentencing notes, above n 1, at [23].The parties' submissionsThe Crown's submissions[20] Ms Grau on behalf of the Crown submitted that, based upon the guidanceprovided by this Court in H (CA94/08) v R which involved comparable offending, astarting point in the range of five and a half to six years' imprisonment was warranted.4In the Crown's submission, because of the heightened vulnerability of thecomplainant, her difficult family situation, and the wide range of sexual activity towhich the complainant was subjected, which had some degrading aspects, the presentcase was more serious.[21] Ms Grau acknowledged that a modest discount of 10 per cent could beextended to Mr Spearpoint for not contesting the substitution of the charges. This hadbrought finality to the criminal proceedings.5 However, the Crown rejected anysuggestion Mr Spearpoint was entitled to a credit akin to a guilty plea discount forhaving adopted that stance.Mr Spearpoint's argument[22] Mr Harrison on behalf of the appellant stressed the approach taken by thetrial Judge to mitigating factors personal to Mr Spearpoint. The Judge extended a10-per-cent discount in acknowledgment of the absence of any prior offending and afurther 15-per-cent credit for Mr Spearpoint's "previous behaviour as a good citizen"and contributing member of the community.6 Mr Harrison submitted Mr Spearpointwho, as the trial Judge had recognised,7 was in all other respects of good character anda good father, should receive the same level of credit on the re-sentencing.[23] Because of his convictions and the imposition of a sentence of imprisonment,Mr Spearpoint will be subject to the Child Protection (Child Sex Offender GovernmentAgency Registration) Act 2016 (Child Protection Act). Mr Harrison submitted that,both because of the punitive nature of that legislation and the protection afforded to4 H (CA94/08) v R [2008] NZCA 237.5 Sentencing Act 2002, s 9(2)(fa).6 Sentencing notes, above n 1, at [53].7 At [52].society from his registration as a sex offender, a number of sentencing purposes,including community protection, were not required to be reflected (at least to the samedegree) in the length of the sentence imposed.[24] In support of that submission, Mr Harrison sought to draw an analogy withthis Court's approval, in Bell v R,8 of a sentencing Judge's imposition of a longer finitesentence to protect the public in preference to a sentence of preventive detention.Conversely, Mr Harrison argued that where that purpose of sentencing is beingachieved by another means, some adjustment, albeit of a modest kind, should be madeto the length of the sentence that may otherwise have been imposed.[25] Mr Harrison acknowledged the guidance provided by H (CA94/08) v R, butsubmitted that a four year starting point was appropriate.Decision on sentenceThe starting point[26] There is no tariff case for sexual offending with a young person. A sentencingmidpoint of four years' imprisonment was identified by this Court because of the needto recalibrate sentences to reflect the increase in the maximum penalty from seven to10 years' imprisonment for such offending.9 Previously, by reference to the startingpoint in a contested rape case, this Court had held that a proportionate starting point,before applying aggravating features, was one of two and a half years' imprisonment.10[27] In H (CA94/08) v R, particular aggravating features were identified as beingpresent. Because of the abuse of trust, the significant age gap between the offenderand the complainant, and the significant adverse effects on the complainant, it wasobserved that a sentence of at least five years' imprisonment could have appropriatelybeen applied as a starting point.11 In R v Johnson, it was noted that other aggravating8 Bell v R [2017] NZCA 90.9 H (CA94/08) v R, above n 4, at [17].10 V (CA180/01) v R CA180/01, 30 August 2001.11 H (CA94/08) v R, above n 4, at [19].factors not present in H (CA94/08) v R, such as grooming, or abusive and demeaningbehaviour, may increase culpability.12[28] There are some other aggravating features in the present case which make thepresent offending more serious than the otherwise comparable case ofH (CA94/08) v R. These include the range and nature of the sexual activity in whichthe complainant was required to engage, and aspects of the offending which could bedescribed as degrading. Mr Spearpoint required the complainant to masturbate infront of him, and on at least one occasion did so in front of her. Those acts werereflected in the separate charges of doing an indecent act on a young person.[29] The Crown stressed the particular vulnerability of the complainant resultingfrom her difficult domestic background. However, her isolated position was arguablylittle different from that of the 15-year-old complainant in H (CA94/08) v R.The offending against that complainant had occurred after she had been left in the careof others when her mother moved to Australia. Being a friend of the complainant'smother, the appellant was supposed to help with the girl's care.[30] Inevitably each case will differ according to its individual circumstances and afull assessment is required of the particular features of the offending to arrive at anappropriate starting point. We consider the combination of aggravating factors in thepresent case, when taken together with a necessary but modest uplift to reflect thethree indecency charges, results in a starting point of five and a half years'imprisonment. In arriving at that starting point we have taken into account that thereis some overlap between the additional aggravating features and the lesser charges.[31] We do not overlook Mr Harrison's submission that the Court inH (CA94/08) v R was also concerned with a representative count of sexual connectionwith a dependant family member. However, we do not consider the presence of thatcharge, which carries a lesser maximum sentence of seven years' imprisonment,materially affects the relevance of that case when setting the appropriate starting pointfor offending involving sexual connection with a young person.12 R v Johnson [2010] NZCA 168 at [17].Mitigating considerations[32] Turning to mitigating factors personal to Mr Spearpoint, we considerthe Crown's acceptance that a 10-per-cent reduction be afforded to Mr Spearpoint forhis cooperation is a proper concession.[33] We do not intend to replicate the 25-per-cent discount which was afforded toMr Spearpoint in the District Court for his prior good record. While we acceptMr Spearpoint, as a 56-year-old person who has previously led an unblemished lifeprior to this sexual offending is entitled to some credit, we consider a reduction in theorder of 25 per cent was overly generous and outside the available range of discount.[34] The Crown drew our attention to some decisions of this Court where thefrequency and duration of the sexual offending, and an offender's continuedprotestation of innocence and lack of remorse, counted against the person beingafforded credit for prior good character.13 However, we consider Mr Spearpoint'soffending over the course of a two-month period should be viewed more as aberrantconduct on his part, he being a person in his 50s who had not previously offended.Additionally, while accepting that the re-sentencing exercise is undertaken afresh, weconsider that in fairness to the appellant we need to be cognisant of the approach takenby the earlier sentencing Court to this matter of personal mitigation. We would allowa 15-per cent-reduction.[35] In response to the submission made on behalf of Mr Spearpoint that he is alsoentitled to some greater deduction akin to a credit for a guilty plea, we acceptthe Crown's submission that such a discount is not available. Mr Spearpoint had theopportunity to plead guilty to these charges at his trial when they were added to theCrown Charge Sheet at the end of the Crown case. He has at no point admitted theoffending. While there are some indications that he may be reassessing his position,it is not clear that his preparedness to accept the disposition of the appeal by way ofthe substitution of convictions for lesser offending is a true recognition ofresponsibility.13 Hayward v R [2008] NZCA 172; and Britow v R [2017] NZCA 229.[36] Importantly, the disposition of the appeal by the process adopted requiresthe Court to be satisfied that Mr Spearpoint could have been found guilty of thesubstituted charges and that the jury must have been satisfied at his trial of the factsthat prove that offending. Mr Spearpoint's consent is not a prerequisite.While Mr Spearpoint has abandoned the opportunity of a retrial, that is also ofconsiderable benefit to him. He is no longer in jeopardy of conviction on the moreserious charges of sexual violation, nor of serving a considerably longer period ofimprisonment.[37] Finally, turning to Mr Harrison's argument that some allowance be made forMr Spearpoint becoming subject to the Child Protection Act, we do not consider suchan adjustment is available in this case. This Court has previously expressed the viewthat it considered it "entirely unlikely" that the legislature intended the establishmentof that registration regime to result in a reduction of an offender's sentence.14 We donot discount the possibility of the issue being re-examined in a more appropriate casewith the benefit of more detailed argument and analysis.15 However, in the presentcase, as was responsibly acknowledged by Mr Harrison, any discount would beminimal, and because of the relatively generous approach we have taken to credit forprevious good character, we do not consider any adjustment is warranted.Sentence[38] In summary, we afford Mr Spearpoint a 25-per-cent deduction for mitigatingfactors personal to him from a starting point of five and a half years' imprisonment.This results in a rounded sentence of four years' imprisonment.Adjustment to the indecency sentences[39] The sentencing Judge imposed concurrent sentences of six years'imprisonment on the indecency charges. No appeal lies in respect of Mr Spearpoint'sconviction in respect of those charges nor the sentences imposed. However, the Crownaccepts that these sentences will necessarily require adjustment because of thesubstitution of the sexual violation charges and the re-sentencing exercise.14 Bell v R, above n 8, at [26]; and A (CA307/2017) v R [2017] NZCA 531.15 See Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49.[40] We accept the Crown's submission that the length of sentence appearsexcessive for charges of this type. Because of the length of the sentence on thesubstituted charges, which includes an uplift to reflect the indecency offences, thoseconcurrent sentences cannot stand.[41] As proposed by Ms Grau and without demur from Mr Harrison, we imposeshorter concurrent sentences of two years' imprisonment on those charges.16Result[42] The appeal against conviction is allowed in part.[43] The convictions on the five charges of sexual violation (charges 1, 2, 3, 4 and5 in the Crown's Charge Sheet) are quashed. Convictions on the charges of sexualconnection with a young person (charges 1A, 2A, 3A, 4A and 5A in the Crown'sCharge Sheet) are entered in substitution.[44] The strike warning issued on 2 March 2017 in respect of charges 1, 2, 3, 4 and5 is cancelled.[45] The sentence of 10 years and two months' imprisonment imposed in respect ofcharges 1, 2, 3, 4 and 5 in the Crown's Charge Sheet are quashed. On each of charges1A, 2A, 3A, 4A and 5A in the Crown's Charge Sheet, Mr Spearpoint is re-sentencedto concurrent terms of four years' imprisonment.[46] The convictions on charges 6, 7 and 8 stand, the appeal against them havingbeen abandoned.[47] The appeal against sentence is allowed.[48] The sentence of six years' imprisonment imposed in respect of the charges 6,7 and 8 in the Crown's Charge Sheet are quashed. In their place, concurrent sentencesof two years' imprisonment are imposed in respect of each charge.16 See Masei v R [2016] NZCA 481.Three-Strikes Warning[49] At the delivery of the outcome of this appeal, Mr Spearpoint, who appeared byway of an audio-visual link, was given a three-strikes warning in the following terms:Paul Michael Spearpoint, given your convictions for sexual connection with ayoung person, you are now subject to the three strikes law. I am going to giveyou a warning of the consequences of another serious violence conviction.You will also be given a written notice which contains a list of these seriousviolent offences.1. If you are convicted of any one or more serious violent offences otherthan murder committed after this warning and if a Judge imposes asentence of imprisonment then you will serve that sentence withoutparole or early release.2. If you are convicted of murder committed after this warning then youmust be sentenced to life imprisonment without parole unless it wouldbe manifestly unjust to do so. In that event the Judge must sentenceyou to a minimum term of imprisonment.Solicitors:Crown Law Office, Wellington for Respondent