PAERAU v R [2018] NZCA 139

PAERAU v R [2018] NZCA 139 [9 May 2018]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 ZEALANDCA698/2017[2018] NZCA 139BETWEEN RAMA KANUTA PAERAUAppellantAND THE QUEENRespondentHearing: 22 March 2018Court: Winkelmann, Courtney and Mallon JJCounsel: R L Thomson for AppellantE J Hoskin for RespondentJudgment: 9 May 2018 at 11 amJUDGMENT OF THE COURTA The appeal is allowed. The sentence is quashed.B The appellant is re-sentenced as follows: 14 months' imprisonment for theindecent assault conviction, and three months' imprisonment for theburglary conviction, to be served concurrently. The sentence is subject to theconditions recorded at [47] of this judgment.C Pursuant to s 86C(4) of the Sentencing Act 2002, the appellant must serve thefull term of his sentence for indecent assault, and is not to be released beforethat sentence has expired.____________________________________________________________________REASONS OF THE COURT(Given by Winkelmann J)[1] The appellant, Mr Rama Paerau, was convicted following trial on one chargeof indecent assault. Following trial, he pleaded guilty to a further charge of burglary.Judge E P Paul sentenced Mr Paerau to 18 months' imprisonment on theindecent assault, a sentence which included, the Judge said, an uplift of three monthsfor the burglary offence.1 The Judge also imposed a concurrent sentence of threemonths' imprisonment for the burglary.2[2] A sentence of 18 months' imprisonment is a short-term sentence for thepurposes of the Parole Act 2002 and so, in the usual course, Mr Paerau would bereleased after serving only half of that sentence.3 However, the indecent assaultconviction fell within the definition of a stage-2 offence for the purposes of s 86C ofthe Sentencing Act 2002. Section 86C(4) provides that if a sentence is imposed for astage-2 offence other than murder, the judge must order that the offender is not to bereleased until the offender has served the full sentence. In this case, the sentence of18 months' imprisonment was imposed for the indecent assault. On the face of it, anys 86C(4) order would apply to the entire 18-month sentence.[3] At the hearing of the appeal, Ms Thomson for Mr Paerau argued that the Judgedid not turn his mind to the implications of s 86C when he uplifted the sentence forindecent assault to reflect the additional burglary offending, and that he should havebecause of the sentencing principle that the Court must impose the least restrictiveoutcome.4 Ms Thompson argued that because of s 86C(4), Mr Paerau effectivelyreceived a cumulative sentence of six months for the burglary. Her reasoning is asfollows: had the sentence not been added as an uplift on a stage-2 offence, Mr Paerauwould have been released after serving only half of the sentence imposed —three months is served in prison for a six-month sentence. The Judge should thereforehave taken this into account in sentencing and should have imposed a lesser uplift forthe burglary offending. She submitted an uplift of one-month only was appropriate.[4] At the hearing, the Crown's response was that this application of s 86C showedthe Sentencing Act operating as intended, and in accordance with the plain wording of1 R v Paerau [2017] NZDC 24939 at [8].2 At [9].3 Parole Act 2002, ss 4(1), definition of "short-term sentence" and 86(1).4 Sentencing Act 2002, s 8(g).the legislation. And even if the outcome was not intended by the Judge, the sentenceimposed was within the appropriate range for offending of this nature and seriousness.[5] Following the hearing of the appeal, we queried with counsel the absence of arecord that the Judge had made the order required by s 86C(4). In response to thatquery, counsel filed a joint memorandum agreeing that the Judge had not made theorder, that because of this error the appeal should be allowed and Mr Paerau eitherre-sentenced by this Court or the proceeding remitted to the District Court forre-sentencing. We propose to allow the appeal and re-sentence Mr Paerau. It isnevertheless necessary to address the substance of the issues originally raised onappeal, as they have a bearing on any sentence to be imposed.Factual background[6] The victim in this matter was at her boyfriend's family home. Mr Paerauapproached her as she sat watching television, and proceeded to sniff her beforestroking her genital area over her clothing.[7] On another occasion Mr Paerau participated in the burglary of a privateresidence in which several items were taken.[8] Mr Paerau was aged 44 at the time of this offending. He has an extensivecriminal history, including three prior convictions for indecent assault (in 2012, forwhich he received a sentence of two years and six months' imprisonment as well ashis first strike warning in respect of one of the offences) and 11 previous convictionsfor burglary (the last in 2016, for which he received a one year and four months'imprisonment).Sentence imposed[9] The Judge characterised the indecent assault as being at the lower end ofseriousness for that kind of offending; the touching was over clothing and for a veryshort duration.5 He adopted a starting point of 12 months' imprisonment for theindecent assault, uplifted by three months to reflect Mr Paerau's previous convictions,5 R v Paerau, above n 1, at [7].including the earlier convictions for indecent assault, and a further three months forthe separate burglary offence. The Judge also said he reduced the extent of the upliftfor the burglary offence to reflect the guilty plea to that charge.6 He allowed noreduction in sentence for any other mitigating factors. Accordingly, a final sentenceof 18 months' was imposed. The Judge considered a sentence of imprisonmentwarranted, and declined to commute the sentence to one of home detention.7Relevant principles[10] The sentence Judge Paul imposed on the indecent assault was imposed toreflect the totality of the offending: both the indecent assault and the burglary. Insentencing Mr Paerau in that way, the Judge used the approach to sentencing set outin s 85(4) of the Sentencing Act. Section 85 provides in material part: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.(4) If only concurrent sentences are to be imposed,—(a) the most serious offence must, subject to any maximum penaltyprovided for that offence, receive the penalty that is appropriatefor the totality of the offending; and(b) each of the lesser offences must receive the penalty appropriateto that offence.[11] The Judge was bound by the provisions of s 86C of the Sentencing Act(although it seems its application to the sentence he was to impose was not drawn tohis attention). Section 86C is part of a group of provisions (ss 86A–86I) inserted intothe Sentencing Act, from 1 June 2010, by s 6(1) of the Sentencing and Parole ReformAct 2010. The latter Act is sometimes referred to as the "three strikes regime".Section 3 of the Sentencing and Parole Reform Act described its purpose as follows:6 At [8].7 At [6] and [9].3 PurposeThe purpose of this Act is to—(a) deny parole to certain repeat offenders and to offenders guilty of theworst murders:(b) impose maximum terms of imprisonment on persistent repeatoffenders who continue to commit serious violent offences.[12] Section 86A of the Sentencing Act creates a category of offending, defined forthe purposes of ss 86A to 86I, as serious violent offending. Indecent assault is includedin the list of serious violent offences. Burglary is not.[13] The indecent assault committed by Mr Paerau was a stage-2 offence for thepurposes of the Sentencing Act because it was a serious violent offence committed byMr Paerau when he already had a record of a first warning in respect of another seriousviolent offence.8 Section 86C of the Sentencing Act describes consequences for anoffender convicted of a stage-2 offence, other than murder, as follows:86C Stage-2 offence other than murder: offender given final warningand must serve full term of imprisonment(1) When, on any occasion, a court convicts an offender of 1 or morestage-2 offences other than murder, the court must at the same time—(a) warn the offender of the consequences if the offender isconvicted of any serious violent offence committed after thatwarning (whether or not that further serious violent offence isdifferent in kind from any stage-2 offence for which theoffender is being convicted); and(b) record, in relation to each stage-2 offence, that the offender hasbeen warned in accordance with paragraph (a).(2) It is not necessary for a Judge to use a particular form of words ingiving the warning.(3) On the entry of a record under subsection (1)(b), the offender has, inrelation to each stage-2 offence for which a record is entered, a recordof a final warning.(4) If the sentence imposed on the offender for any stage-2 offences is adeterminate sentence of imprisonment, the court must order that theoffender serve the full term of the sentence and, accordingly, that theoffender,—8 Sentencing Act, s 86A.(a) in the case of a long-term sentence (within the meaning of theParole Act 2002), serve the sentence without parole; and(b) in the case of a short-term sentence (within the meaning of theParole Act 2002), not be released before the expiry of thesentence.(5) If the sentence imposed on the offender for 1 or more stage-2 offencesis a short-term sentence (within the meaning of the Parole Act 2002)and any conditions are imposed on the offender under section 93, then,despite anything in that section, those conditions take effect on thesentence expiry date (within the meaning of the Parole Act 2002).(6) If, but for the application of this section, the court would haveordered, under section 86, that the offender serve a minimum periodof imprisonment, the court must state, with reasons, the period that itwould have imposed.(7) The court must give the offender a written notice that sets out theconsequences if the offender is convicted of any serious violentoffence committed after the warning given under subsection (1)(a).[14] It is also helpful to look at the three-strikes provisions in overview.Section 86D addresses the sentencing and parole consequences for an offenderconvicted of a stage-3 offence other than murder. A stage-3 offence is a serious violentoffence committed after an offender has been given a final warning under s 86C. Inbroad brush terms, s 86D provides that the offender must be sentenced to the maximumterm of imprisonment for that offence and the Court must order that they serve thesentence without parole "unless the Court is satisfied that, given the circumstances ofthe offence and the offender, it would be manifestly unjust to make the order". We sayin broad brush terms because s 86D creates special rules for manslaughter, neededbecause the maximum sentence for that offence is life imprisonment.[15] Section 86E deals with the sentencing and parole consequences where thestage-2 or stage-3 offence is murder.[16] Also relevant to this appeal is s 86 of the Parole Act which provides, in materialpart:86 Release date of sentence(1) The release date of a short-term sentence (including a short-termnotional single sentence) is the date on which the offender who issubject to the sentence has served half of it.(1A) Subsection (1) does not apply to a short-term sentence in respect ofwhich an order has been made under section 86C(4)(b) of theSentencing Act 2002, and the release date of such a sentence is itssentence expiry date.[17] Section 86(1A) was inserted into the Parole Act on 1 June 2010, again by theSentencing and Parole Reform Act 2010 and as part of the three-strikes reforms. Itsinclusion was necessary to address what would otherwise have been a conflict betweenan order made under s 86C(4) of the Sentencing Act and the usual rule for release ofoffenders subject to short-term sentences contained in s 86(1) of the Parole Act.Analysis[18] Our starting point is this. The effect of an order made under s 86C(4) is that asentence imposed for a stage-2 offence, even if that sentence has been uplifted toreflect a penalty for other offending which is not stage-2 offending, must be served infull. This is the combined effect in this case of the use of the sentencing methodologyprovided for in s 85(4) of the Sentencing Act, and an order made under s 86C(4) ofthat Act.[19] We also proceed on the basis of what we think is a safe assumption — thatthe Judge did not turn his mind to s 86C of the Sentencing Act when sentencingMr Paerau. The issue for us on this appeal is whether, when evaluating the level ofuplift to impose for the burglary offence, the Judge was entitled to or should have hadregard to the impact of the s 86C(4) order on the time Mr Paerau will serve for thatoffence in the circumstances of this case.[20] The general rule is that a sentencing court will not take considerations basedupon parole eligibility into account.9 We accept that this rule extends to the equivalentstatutory release conditions for short-term sentences. But, as this Court reiterated in9 R v Stockdale [1981] 2 NZLR 189 (CA) at 190–191.Barnes v R, that is a general rule only.10 The Court rejected the approach taken by theHigh Court in Palalagi v Police. In Palalagi Moore J declined to take into accountthe impact of the three-strikes regime on parole eligibility, reasoning that:11The courts should be cautious not to artificially create a sphere of judicialdiscretion where one does not actually exist. Parliament clearly envisaged roomfor the exercise of judicial discretion under ss 86D and 86E. These sectionsrecognise a "manifestly unjust" exception. However, this exception arises only atstage-3. To that extent, Parliament's intention is clear. There is no discretionavailable in s 86C.[21] This Court held in Barnes that no sphere of judicial discretion was beingcreated, because Parliament had intended that the ordinary sentencing process wouldoccur for stage-2 offences under the three-strikes regime.12 The Court said that itwould be lawful for a court to take parole eligibility into account in sentencing, if thatwere done for legitimate sentencing purposes. The Court referred to two decisions ofthis Court where a sentence was reduced for purposes related to statutory provisionsconcerning parole.13[22] The Court in Barnes also addressed whether the provisions of s 86C precludedthat approach when sentencing for stage-2 offending other than murder. The Courtsaid it did not. The Court said that s 86C only applied after the sentence had beenevaluated in the normal way and imposed.14 That evaluation required the judge toundertake the usual sentencing exercise, having regard to the usual purposes ofsentencing, applying the usual sentencing principles, and considering the mandatoryaggravating and mitigating factors.15 That could, the Court said, require the Court toimpose the least restrictive outcome appropriate in the circumstances.16[23] The Court stressed however that such an approach could only be taken for agenuine purpose under the Sentencing Act and observed it would be quite wrong toadopt that approach simply for the purpose of avoiding the effect of s 86C. The Court10 Barnes v R [2018] NZCA 42 at [75].11 Palalagi v Police [2015] NZHC 1832 at [62].12 Barnes v R, above n 10, at [49]–[50] and [63].13 At [68]–[73], citing R v Accused (CA265/88) [1989] 1 NZLR 643 (CA); and R v Hape [1994]1 NZLR 167 (CA).14 Barnes v R, above n 10, at [53].15 Sentencing Act, ss 7–9.16 Barnes v R, above n 10, at [59], referring to Sentencing Act, s 8(g).anticipated it would only be in exceptional cases that sentencing judges will be able totake this approach while ensuring the purposes of both the Sentencing Act and theSentencing and Parole Reform Act are served.17[24] The Court also took into account that in stage-2 cases not involving murder,Parliament must have intended that sentencing judges would not impose sentences thatare disproportionately severe or manifestly unjust.18 While noting the absence of anyprovision making an exception for manifest injustice in s 86C (in contrast to suchprovision in ss 86D and 86E), the Court was satisfied that an approach which avoidsmanifestly unjust outcomes when sentencing for stage-2 offending was in accordancewith the legislative intent behind the passage of the Sentencing and Parole ReformAct.19[25] The Court concluded as to general approach to sentencing under s 86C:[59] It is not simply a question of proportionality, however. In our view,in the absence of clear language to the contrary, the legislative intent must betaken to be that all the other relevant purposes and principles of sentencing setout in pt 1 of the Sentencing Act should apply in evaluating the sentence to beimposed on the stage-2 offender. This brings into account rehabilitativepurposes (ss 7(1)(h) and 8(i)), and where appropriate s 8(g) (the duty to imposethe least restrictive outcome appropriate in the circumstances), as well as thoseother provisions that would tend to increase a sentence to mark the gravity ofthe offending.[26] As to the particular case before it, the Court concluded that the parole outcomesfor Mr Barnes should have been taken into account to avoid manifest injustice becausethe stage-1 offence did not involve serious violence, even though the offence type fellwithin the statutory definition of serious violent offending.20[27] Ms Hoskin, for the Crown, argued that Barnes is distinguishable, because itturned upon the nature of the original stage-1 offending which exposed Mr Barnes tothe sentencing outcomes for a stage-2 offence — not an issue in the present case. Shealso relied upon the Court's observation in Barnes that it would only be in exceptionalcases that it would be appropriate to consider parole eligibility when imposing a17 Barnes v R, above n 10, at [78]–[79].18 At [56].19 At [53]–[54].20 At [80] and [82].sentence. She submitted this is not an exceptional case. Rather the effect of sentencingis the intended effect of s 86C of the Sentencing Act (when that provision operates ona sentence constructed by applying the s 85(4) totality principle) taken together with s86(1A) of the Parole Act. Ms Hoskin submitted therefore that to take parole eligibilityinto account in such circumstances undermines the purpose of the Sentencing andParole Reform Act.[28] Ms Hoskin also argues that this outcome cannot be said to be unexpected orunintended as the same outcome would have been achieved if the sentence had beenimposed cumulatively, an option which was open to the sentencing judge. This isbecause s 75 of the Parole Act 2002, which deals with sentence calculation wherecumulative sentences are imposed, provides as follows:75 Cumulative sentences form a notional single sentence(1) If, after the commencement date, an offender is sentenced to asentence of imprisonment (a later sentence) that is directed to beserved cumulatively on another sentence (an earlier sentence), thelater sentence and the earlier sentence form a notional single sentencefor the purpose of determining—(a) whether the offender is subject to a long-term sentence or ashort-term sentence; and(b) the non-parole period to apply when determining the offender'sparole eligibility date; and(c) the release date to apply when determining the offender'sstatutory release date.(Emphasis in original.)[29] When that provision is applied in combination with s 86(1A) of the Parole Act,Ms Hoskin submitted that the release date on the single notional sentence made up ofthe stage-2 sentence together with the later cumulative sentence for a non-stage-2offence will be the sentence expiry date.[30] The outcome in Barnes undoubtedly, and indeed inevitably, turned on the factsof that case. But the Court identified general principles as to the approach to be takento sentencing under s 86C which are of broader application. While it anticipated thatparole outcomes would only be able to be considered as relevant to sentencing inexceptional circumstances, the Court was not setting a legal threshold, but rathermaking an observation as to how often it would be that judges could take paroleconsiderations into account. The Court recognised that there would be other kinds ofcase in which that could be taken into account while ensuring the purposes of both theSentencing Act and the Sentencing and Parole Reform Act are served. Each case mustbe approached on the particular facts. The issue for us is whether this is one of thosecases where the sentencing court should have taken parole considerations into accountin setting the sentence.[31] Nor are we persuaded by the Crown's submission that the purpose of s 86C ofthe Sentencing Act would inevitably be undermined in this case if the release dateimplications of the s 86C(4) order is taken into account. If that consideration is limitedto the uplift portion of the sentence reflecting offending which is not stage-2 offending(the burglary), and if it is weighed in connection with a legitimate sentencing purposethen we do not consider it undermines the purpose of the provision at all. Section 3identifies as a purpose of the Sentencing and Parole Act, to deny parole to "certainrepeat offenders". Those are offenders who repeatedly commit serious violentoffences. The portion of the sentence at issue in this case does not relate to a seriousviolent offence.[32] The focus of the regime created by ss 86A–86I of the Sentencing Act is uponthe sentencing and parole consequences for repeat serious violent offending.The order under s 86C(4) required to be made is expressed to relate to the sentenceimposed for the stage-2 offence. We see no indication in the parliamentary materialsthat Parliament had in mind an escalating scale of consequences for offencescommitted by those falling outside the three-strike regime. As this Court said inBarnes:21when Parliament passed the Sentencing and Parole Reform Act theintention was that there should indeed be an escalating scale of consequencesfor repeat criminal offending involving serious violence.21 At [40] (footnote omitted). See also R v Harrison; R v Turner [2016] NZCA 381, [2016] 3 NZLR602.[33] It is only because of the sentencing methodology available under s 85(4) thata sentence subject to a s 86C(4) warning may include a penalty for other offending.There is no indication in the parliamentary materials that the implications theSentencing and Parole Reform Act had for this aspect of the sentencing process wasspecifically considered or addressed in the legislative process. We consider it verylikely that Parliament did not turn its mind to it.[34] Our view that this is so is strengthened by the unpredictability of outcomes foroffenders created by the regime in circumstances where offenders are sentenced forboth stage-2 offences, and offending that falls outside that category. Offenders arefrequently sentenced for two or more offences at the same time. In such cases thesentencing judge has a choice as to how a sentence for multiple offences is to beconstructed. This includes a choice as to whether to impose cumulative sentences orto impose concurrent sentences, uplifting the sentence for the most serious offence toreflect the totality of the offending. It is also a matter of judgment which offence isselected as the most serious for the purposes of s 85(4) — it is sometimes not obviouswhich offence is the most serious. Yet the effect of s 86C is that the way a sentence isconstructed may have significant implications for the length of sentence that theoffender will be required to serve. For example, if the stage-2 offence is not selectedas the most serious offence for the purposes of s 85(4), and is therefore reflected in theuplift imposed on a sentence for the other offending, s 86C(4) will not apply to thatprincipal sentence (or the uplift) but rather only to the concurrent sentence imposedfor the stage-2 offence.[35] In this case, and as the Crown submitted, the sentence for the burglary couldalso have been imposed as a cumulative sentence because it was unrelated offending.22However, we do not accept Ms Hoskin's submission that it follows that if it had, theprovisions of ss 75(1) and 86(1A) of the Parole Act would necessarily result in thesame release date outcome for Mr Paerau as with the present sentence.[36] Section 86(1A) only excepts from the general rule for release date for shortterm sentences, sentences "in respect of which an order has been made under22 Sentencing Act, s 84(1).section 86C(4)(b) of the Sentencing Act 2002". While s 86C(4) requires the court toorder that an offender serve a determinate sentence of imprisonment for a stage-2offence in full, that court order relates only to the sentence for serious violentoffending. It is not expressed to relate to any offending that does not fall into thatcategory but for which a cumulative sentence is imposed.[37] Ms Hoskin argued that the general s 75 rule, that the later (cumulative)sentence and the earlier sentence form a single notional sentence for determining therelease date to apply, has the effect of applying the s 86(1A) rule to the later cumulativesentence, because it deems them one sentence for calculating statutory release dates.We do not consider that is the correct reading of these provisions. Section 75 wasdrafted within a particular statutory framework. It was not amended by the Sentencingand Parole Reform Act to reflect the new statutory framework created by the inclusionof s 86(1A). It does not, on its face, address the situation where different statutoryrelease dates operate, not because of whether the sentence is short term or long term,but because of the three strikes regime. On our interpretation, s 75(1)(c) is notintended to, and does not operate to apply the s 86(1A) rule to the notional singlesentence deemed by s 75(1) to be created by the imposition of a cumulative sentenceupon an existing sentence.[38] A clear example of the arbitrary effect of the interpretation of s 75(1) the Crowncontended for would arise in circumstances where the cumulative sentence fornon-stage-2 offending was of greater length than that imposed for the stage-2 offence.On the Crown's interpretation, an offender sentenced for a low-level indecent assault,at the same time as being sentenced, or while serving a longer sentence, fordrug-related offending would serve the full sentence for the drug offending as well asfor the indecent assault. If the sentence for the indecent assault was four years, andthe sentence for the drug-related offending was 10 years, that could result in anadditional six years' imprisonment without the possibility of parole despite the factthat the drug-related offending is not subject to the three-strikes regime.[39] For these reasons we consider the construction of ss 75(1) and 86(1A) of theParole Act advanced by Ms Hoskin is untenable.[40] We are therefore satisfied that s 86C does apply to sentences imposed forstage-2 offences, even where, as here, they contain an uplift for other offending whichis not stage-2 offending. We are however also satisfied that in such cases, whenevaluating the uplift imposed for non-stage-2 offending as part of the s 85(4)sentencing process, the Court should take into account that any uplift will be servedin full in settling upon the appropriate uplift. To take that approach is consistent withthe requirements of s 8(g) of the Sentencing Act.[41] The application of the s 86C(4) order to a penalty imposed for offending thatis not serious violent offending requires this approach. The restrictive paroleconsequence of the s 86C(4) order for the burglary offending is not necessary toachieve the purposes of the Sentencing and Parole Reform Act, and so results in anunnecessarily restrictive sentence. We are satisfied that it follows that considering theparole consequences for the portion of the sentence relating to the burglary whensentencing is not inconsistent with the purposes of that Act.[42] We are also satisfied that the effect of the s 86C(4) order on the portion of theuplift Mr Paerau will serve in prison was relevant to the sentencing principles set outin s 8(g). Such an approach is consistent with the purposes and principles of theSentencing Act. Indeed, it is required by them. We make clear that we do not regardMr Paerau's circumstances as exceptional, but that is not a precondition for theapproach we take. This Court did not lay down a threshold requirement of exceptionalcircumstances in Barnes.Sentencing Mr Paerau[43] We adopt the same starting point as the Judge: 12 months for the indecentassault. We have considered whether the uplift for the earlier offending wasappropriate. We have two concerns with it. Part of the uplift relates to the earlierindecent assault which counted as a first strike offence. Since that is the offence whichtriggers the second-strike consequences, there is an element of double counting againstMr Paerau in uplifting the sentence for that earlier offending.23 That offence is onlyone of the offences justifying the uplift however.[44] Secondly, the inclusion of an uplift for previous offending in a sentence subjectto the s 86C(4) order has the result that the uplift is also served in full. Uplifts forearlier offending are usually imposed because of the need for specific deterrence ofthe offender and to protect the public.24 The fact that the offender will serve the fullterm of that uplift is relevant for a judge in setting the necessary level of deterrencefor the same reasons we have set out above in connection with the uplift for theburglary sentence.[45] In the circumstances, an uplift of no more than one month is required to reflectthe special need to deter Mr Paerau from his offending ways. In selecting that upliftwe have had regard to the parole consequences that follow from it. We consider wemust do so to comply with s 8(g) of the Sentencing Act, having regard to the effect ofs 86(4) on the portion of the sentence relating to this uplift. We add to that a furtheruplift of one month for the burglary offending. While on its own that justifies a highersentence, we have to ensure both that the sentence imposed is in proportion to theoverall offending, and that we take into account s 8(g) of the Sentencing Act. Theconcurrent sentence we impose for that offending is therefore the same as imposed bythe Judge: three months.[46] This leads to a final sentence of 14 months' imprisonment for theindecent assault conviction, and a concurrent sentence of three months' for theburglary conviction.[47] The Judge imposed the standard release conditions from the Parole Act,25 andspecial conditions, both to last six months past the end date of Mr Paerau'simprisonment.26 We impose the same conditions; the special conditions are:23 R v Wereta [2014] NZHC 2555 at [12]. We do not overlook that this Court has also recentlyconsidered this issue in Dibben v R [2018] NZCA [2018] NZCA 134 at [63(c)]. However, it is notclear that the Court had the benefit of full argument on this issue.24 Beckham v R [2012] NZCA 290 at [84]; and R v Ward [1976] 1 NZLR 588 (CA) at 589–590.25 Parole Act, s 14(1).26 R v Paerau, above n 1, at [9]. It appears the Judge was referring to the special conditions detailedin the probation officer's pre-sentence report1. Not to possess, consume or use any alcohol or drugs not prescribed to you.2. To attend and complete an appropriate departmental programme to thesatisfaction of a probation officer. The specific details of the appropriateprogramme shall be determined by a probation officer.3. To attend an assessment for Community Alcohol and Drug Servicesprogramme as directed by a probation officer. To attend and complete anycounselling, treatment or programme as recommended by the assessmentas directed by and to the satisfaction of a probation officer.4. To attend an assessment for any other counselling and/or programmes asdirected by a probation officer. To attend and complete any counsellingtreatment or programme as recommended by the assessment as directedby and to the satisfaction of a probation officer.5. To reside at an address approved by a probation officer and not move toany new residential address without the prior written approval of aprobation officer.6. To notify a probation officer prior to commencing, terminating or varyingany employment or voluntary work.7. Not to associate with or contact the victims of your offending without theprior written approval of a probation officer.8. Not to approach, enter or remain on the premises of the victim of youroffending or any other place as directed in writing by a probation officer.Result[48] The appeal is allowed. The sentence is quashed.[49] The appellant is re-sentenced as follows: 14 months' imprisonment for theindecent assault conviction, and three months' imprisonment for the burglaryconviction, to be served concurrently. The sentence is subject to the conditionsrecorded at [47] of this judgment.[50] Pursuant to s 86C(4) of the Sentencing Act, we make an order that the appellantmust serve the full term of his sentence for indecent assault, and that he not be releasedbefore the expiry of that sentence.Solicitors:Crown Law Office, Wellington for Respondent