WIWARENA v R [2023] NZCA 384

WIWARENA v R [2023] NZCA 384 [23 August 2023]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA191/2023[2023] NZCA 384BETWEEN RIKIHANA WIWARENAAppellantAND THE KINGRespondentCourt: Collins, Lang and Woolford JJCounsel: W T Nabney for AppellantH G Clark for RespondentJudgment:(On the papers)23 August 2023 at 9.00 amJUDGMENT OF THE COURTA The application for leave to bring a second appeal is granted for thelimited purpose of error correction.B The appeal is allowed to the extent that the sentences of imprisonmentimposed on Charges 1, 4 and 11 are quashed and replaced by convictionsand discharges.C The application for leave to bring a second appeal is otherwise declined.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] Following a Judge-alone trial in the Tauranga District Court, Judge Connellfound Rikihana Wiwarena guilty of seven charges of sexual offending against three ofhis female cousins, all of whom were children.1 The offending commenced when hetoo was a child aged 13. It continued until he was 17.[2] On 21 September 2021, Judge Connell sentenced Mr Wiwarena to 12 months'home detention.2 The Solicitor-General appealed to the High Court at Taurangaagainst the sentence on the basis that it was manifestly inadequate and wrong inprinciple.[3] On 16 December 2021, Moore J allowed the appeal.3 He quashed the sentenceof 12 months' home detention and substituted a sentence of five years and four months'imprisonment as the minimum necessary in the interests of justice to remove theelement of manifest inadequacy. Moore J directed that Mr Wiwarena surrenderhimself to the Tauranga Central Police Station no later than 10:00 am on 29 December2021 to commence his sentence of imprisonment. Mr Wiwarena did not surrenderhimself and it was some time before he was located and arrested.[4] Mr Wiwarena now applies to the Court of Appeal for leave to bring a secondappeal.Offences[5] Mr Wiwarena was initially charged with 11 offences. He was found guilty ofseven charges and discharged or acquitted of four charges. We gratefully adopt thesummary of the facts leading to each charge as set out by Moore J:41 R v Wiwarena [2021] NZDC 18790 [District Court judgment] at [1].2 At [39].3 Solicitor-General v Wiwarena [2021] NZHC 844 [High Court judgment].4 High Court judgment, above n 3 (footnotes added, emphasis in original).Offending against AMr Wiwarena is four years older than A. At the time of the offending, A wasaged between nine and 13 years old.[Charge 1:] Indecent assault on a young person5This was the last incident in the series which [made] up the offending and ledto the Police investigating Mr Wiwarena more closely. Between 1 January2018 and 31 March 2018, A's grandmother was receiving medical treatmentat Tauranga Hospital. A was staying with her grandmother at accommodationprovided by the hospital. Other family members, including Mr Wiwarena,also spent time there. [Mr Wiwarena was 17 years old at the time.]On one occasion, Mr Wiwarena was alone with A in the kitchen. Hergrandmother and brother were asleep elsewhere in the house. After closingthe doors, Mr Wiwarena kissed A on the lips and hugged her. He touched herbody and tried to put his hands down her pants. A told Mr Wiwarena that whathe was doing was wrong and to stop.Family members present at the time became aware of the incident andcontacted Police. A was interviewed by Police and disclosed several otherincidents involving Mr Wiwarena.[Charges 2 and 3:] Sexual connection with a child under 12 years of age6 andsexual violation by unlawful sexual connection7On one occasion between 5 November 2013 and 31 December 2015, [whenhe was between 13 and 15 years old,] Mr Wiwarena was visiting A's familyhome. A number of other family members were also present.At some stage during the evening A went to her bedroom to sleep.Mr Wiwarena entered the room and lay down on the bed next to her. Heattempted to put his hand down her pants. A repeatedly pulled his hand out.Mr Wiwarena then removed A's pants and placed his penis into her vagina. Atsome point during the incident he put his penis in A's mouth and forced her togive him oral sex.[Charges 4 and 5:] Sexual connection with a young person8 and sexualviolation by unlawful sexual connectionOn approximately four occasions between 5 November 2013 and 4 November2016, [when he was between 13 and 16 years old,] Mr Wiwarena engineeredsituations so that he was alone with A when she was living at her family home.He would again exploit these opportunities to put his penis in A's vagina andforce her to give him oral sex.Offending against BMr Wiwarena is seven years older than B. At the time of the offending, B wasaged between seven and nine years old.5 Crimes Act 1961, s 134(3). Maximum penalty of seven years' imprisonment.6 Section 132(1). Maximum penalty of 14 years' imprisonment.7 Sections 128(1)(b) and 128B. Maximum penalty of 20 years' imprisonment.8 Section 134(1). Maximum penalty of 10 years' imprisonment.[Charge 9:] Sexual violation by rape9On numerous occasions between March 2015 and July 2017, [when he wasbetween 14 and 16 years old,] Mr Wiwarena raped B. Her evidence was thatthese occurred in four different locations. On one occasion Mr Wiwarenaraped B at what she called the "Green Shed", a shed on a [Mōtītī] Islandproperty. B said that Mr Wiwarena raped her when she was living at both ofher nan's houses. Her evidence was that there were "a few" incidents at onehouse, and fewer at the other. She said that the offending occurred "sort ofeverywhere" at the house, but specifically mentioned incidents outside andinside the shed. B's evidence was that there were also "quite a few" incidentsof rape at Mr Wiwarena's house – not quite every month but seemingly closeto that frequency.Offending against CMr Wiwarena is three years older than C. At the time of the offending, C was14 years old.[Charge 11:] Sexual connection with a young personOn one occasion between October and December 2017, [when he was about17 years old,] Mr Wiwarena was drinking at an address occupied by family,including C and another younger female relative, D. Late that night, MrWiwarena went into D's bedroom, placed her on top of him, and put his armsaround her. C interrupted Mr Wiwarena. Once he realised he had been seen,he moved D off his body. The Crown alleged that Mr Wiwarena hadindecently assaulted D before being interrupted by C. However, the Judgefound that there was insufficient evidence to infer that an indecent assault hadoccurred at that point and Mr Wiwarena was acquitted on that charge.C invited Mr Wiwarena to come with her and continue drinking. This was adevice. She was concerned for D and wanted to keep him away from her.Mr Wiwarena placed his hand on C's leg. The pair then had sexualintercourse.District Court sentencing[6] At the outset of his sentencing notes, Judge Connell commented that it wasunfortunate that there had been no restorative justice process undertaken and notedthat Mr Wiwarena's offending had split his whānau into two – those who believed hehad committed the offences and those who did not.10 The Judge saw no evidence ofany remorse nor acknowledgement of the emotional harm done to the victims, becauseMr Wiwarena continued to deny the offending.119 Sections 128(l)(a) and 128B. Maximum penalty of 20 years' imprisonment.10 District Court judgment, above n 1, at [4].11 At [6].[7] The Judge noted that if those mitigating factors had been present, especiallyremorse, they:12would have made it easier for the Court to come to a conclusion – especiallyif [he] had been remorseful – that a non-custodial sentence might be given to[Mr Wiwarena] because there would be hope for [his] rehabilitation.The Judge nevertheless considered that Mr Wiwarena's absence of a criminal recordevidenced his good rehabilitative prospects.13[8] The Judge then referred to the victim impact reports and noted the profoundlynegative effect of the offending on the victims.14[9] The Judge noted that the Crown relied on R v LB,15 a successful Solicitor-General's appeal against a sentence of home detention for sexual offending that was"not dissimilar" to Mr Wiwarena's offending.16 The Judge commented that:17[16] I recognise in cases such as this it would be indeed very rare forsuch an outcome as home detention rather than a term of imprisonment. Itmakes your sentencing for me today very difficult. Because of your youngage at the time of your offending, I was hopeful of trying to impose anon-custodial sentence for you and in some ways I find it difficult to getaround the decision of LB and the other cases and authorities that have beenmentioned by the Crown in the course of this sentencing.[10] The Judge referred to R v AM,18 the guideline judgment on sexual violationsentencing. He acknowledged that the starting point, taking into accountMr Wiwarena's youth, was a sentence of nine years' imprisonment.19 From thatstarting point, the Judge granted discounts of 50 per cent for youth,20 one year (11.1per cent) for Mr Wiwarena's lack of previous convictions and previous goodcharacter,21 and 18 months (16.6 per cent) for personal and cultural factors, includingthe need for rehabilitation described in a psychologist's report and a cultural report12 At [8].13 At [32].14 At [9]–[12].15 R v LB [2020] NZHC 94.16 District Court judgment, above n 1, at [15].17 Footnote omitted.18 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.19 District Court judgment, above n 1, at [34].20 At [35].21 At [36].under s 27 of the Sentencing Act 2002.22 The total discounts therefore applied were77.8 per cent. These discounts brought the end sentence down to two years'imprisonment. The Judge then commuted Mr Wiwarena's sentence from two years'imprisonment to 12 months' home detention.23High Court appeal[11] After summarising the offending and the District Court sentence, Moore Jnoted the issues on appeal as:24(a) whether the Judge erred by adopting a starting point which was toolow;(b) whether the Judge erred by applying discounts which were excessive;and(c) whether the Judge erred by commuting Mr Wiwarena's sentence ofimprisonment to a sentence of home detention.[12] As to the starting point, the Judge also referred to the guideline case of R vAM:25[26] There, the Court of Appeal set four bands of starting points for caseswhere the lead offence involves sexual violation. Of particular relevance tothe present case are band 2 and band 3. Band 2 is appropriate for offendingwhich involves two or three of the listed factors increasing culpability to amoderate degree. Such cases involve a scale of offending and premeditationwhich is, in relative terms, moderate. In particular it covers offending againsta vulnerable victim. The range of starting points for offending in band 2 isseven to 13 years' imprisonment.[27] Band 3 is appropriate for offending which involves two or more of thefactors increasing culpability to a high degree, or more than three of thosefactors to a moderate degree. Such cases include offending accompanied byaggravating factors at a serious level. This may involve a particularlyvulnerable victim, such as a child. The range of starting points for offendingin band 3 is 12 to 18 years' imprisonment.[13] The Judge considered the aggravating factors of the offending to be:26(a) The scale of the offending: There were three separate victims. Inparticular there were possibly in excess of 10 instances of rape against22 At [37]–[38].23 At [39].24 High Court judgment, above n 3, at [23].25 Footnotes omitted.26 At [28] (footnotes omitted).B over a two year period when she was aged between seven andnine years.(b) The vulnerability of those victims – all were children: A was betweennine and 13 years old. C was 14 years old. Seriously aggravating isthe fact that B was between seven and nine years old during the periodwhen she was raped by Mr Wiwarena (on numerous occasions).(c) The degree of violation: The offending involved penile penetration ofthe vagina and forced oral sex. The Judge considered this factormoderately, rather than seriously, aggravating because the chargesrelating to A and C were [of unlawful sexual connection and indecentassault, as opposed to] rape.(d) The breaches of trust: The offending was against family members.Further, some of the offending against B occurred within the familyhome, a place where the occupants were "entitled to feel, and be,safe". [The Judge again considered] this factor moderately (ratherthan seriously) aggravating as the victims were not in Mr Wiwarena'scare, as would be typical of a case involving a most serious breach oftrust.(e) The harm to the victims: In particular to B, who now has issues withself-harm and depression. B notes in her victim impact statement thatthese issues have been exacerbated by Mr Wiwarena's lack of remorseand refusal to accept responsibility for his offending.[14] Moore J noted that the "sentencing Judge considered that a starting point ofnine years' imprisonment was appropriate, placing the offending slightly below themiddle of band 2" in R v AM.27 Moore J found that if the sentencing Judge did takeMr Wiwarena's youth into account when setting the starting point, as he appears tohave done, that would be an error of principle. The Court of Appeal noted in Overtonv R that "[y]outh is not a relevant factor when fixing the starting point."28[15] Moore J considered that, in those circumstances, the sentencing Judge adopteda starting point which was too low.29 Mr Wiwarena's offending involved more thanthree of the R v AM factors, increasing culpability to that of moderate seriousness.That necessarily placed his offending in band 3. Moore J considered Mr Wiwarena'soffending to be of comparable seriousness to R v LB,30 and thought that the appropriatestarting point was 12 years' imprisonment (the bottom of band 3).3127 At [29].28 Overton v R [2011] NZCA 648 at [22].29 High Court judgment, above n 3, at [33].30 At [35] citing R v LB, above n 15.31 At [36].[16] Moore J then considered whether the discounts applied by the sentencing Judgewere excessive. He looked first at what discounts were properly available for youth,previous good character and rehabilitative prospects taken together. The Judgeconsidered Mr Wiwarena's case to be "on all fours" with BB v R,32 where a 40 per centdiscount had been applied. The Judge therefore considered a discount of 40 per centfor youth and previous good character (rather than 50 per cent), was also appropriatefor Mr Wiwarena.33[17] As to the 15 per cent discount applied for personal circumstances disclosed inthe psychologist's report and the s 27 cultural report, the Judge considered thatMr Wiwarena's circumstances were inconsistent with those cases in which a 15 percent discount had been applied. It was difficult to make clear links betweenMr Wiwarena's background and his offending. The Judge therefore considered that a10 per cent discount was appropriate for Mr Wiwarena.34[18] Finally, the Judge noted that Mr Wiwarena had spent three months on homedetention. He therefore allowed a discount of eight months in part to recognise thestress on a defendant who, months after sentencing, must now go to prison.35[19] The end sentence on appeal was therefore one of five years and four months'imprisonment.36Application for leave to appeal[20] This application for leave to appeal is brought pursuant to s 253 of the CriminalProcedure Act 2011. Section 253 provides:253 Right of appeal against determination of first appeal court(1) A convicted person may, with the leave of the second appeal court,appeal to that court against the determination of a first appeal by thatperson or the prosecutor under this subpart in respect of the person'ssentence.32 At [44] citing BB (CA732/2012) v R [2013] NZCA 139.33 At [44].34 At [49]–[50].35 At [52].36 At [53].(2) A prosecutor may, with the leave of the second appeal court, appealto that court against the determination of the prosecutor's first appealunder this subpart.(3) The High Court or the Court of Appeal must not give leave for asecond appeal under this subpart unless satisfied that—(a) the appeal involves a matter of general or public importance;or(b) a miscarriage of justice may have occurred, or may occurunless the appeal is heard.[21] Mr Wiwarena relies on the second limb, namely that a miscarriage of justiceoccurred, or may occur unless the appeal is heard. In McAllister v R, this Courtdeclined to take a prescriptive approach to the application of "miscarriage of justice"test.37 Rather, this Court noted that the test may be satisfied by an argument, wherereasonably available, that the Court below is in error (although not every error willgive rise to a miscarriage).38Mr Wiwarena's submissions[22] Counsel for Mr Wiwarena refers to Dickey v R,39 which was delivered after thefirst appeal was heard, in support of his submission that a significantly higher discountshould have been given by Moore J for Mr Wiwarena's youth and other factorsidentified in the psychologist's report and s 27 cultural report.[23] Furthermore, counsel submits that in the first appeal no consideration wasgiven to the fact that a custodial sentence was being substituted for a non-custodialsentence and the effect that would have on Mr Wiwarena. Counsel refers to R vDonaldson, in which this Court stated that on a Solicitor-General's appeal, theappellate court will generally be reluctant to substitute a non-custodial sentence witha custodial sentence.40 Counsel submit that a custodial sentence should not have beenimposed. Alternatively, a lesser sentence should have been imposed to reflectMr Wiwarena's youth and the effect on him of substituting a custodial sentence for anon-custodial sentence.37 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.38 At [37]–[38].39 Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405.40 R v Donaldson (1997) 1 NZCrimC 640, (1997) 14 CRNZ 537 (CA) at 653.Crown submissions[24] At the outset, the Crown acknowledges an error on the part of both the DistrictCourt and the High Court in respect of the sentence imposed on three charges. Givenhis age at the time of the offending (under 18), Mr Wiwarena was not in law able tobe sentenced to imprisonment for three of the seven sexual offences of which he wasconvicted.[25] Section 18(1) of the Sentencing Act provides:18 Limitation on imprisonment of person under 18 years(1) No court may impose a sentence of imprisonment on an offender inrespect of a particular offence, other than a category 4 offence, or acategory 3 offence for which the maximum penalty available is orincludes imprisonment for life or for at least 14 years, if, at the timeof the commission of the offence, the offender was under the ageof 18 years.[26] The same applies to sentences of home detention.41[27] Accordingly, Mr Wiwarena was not able to be sentenced to imprisonment onthe following charges:(a) Charge 1: Indecent assault on a young person, contrary to s 134 of theCrimes Act 1961, maximum penalty of seven years' imprisonment(relating to complainant A);(b) Charge 4: Sexual connection with a young person (representative),contrary to s 134(1) of the Crimes Act 1961, maximum penalty10 years' imprisonment (also relating to complainant A); and(c) Charge 11: Sexual connection with a young person, contrary to s134(1) of the Crimes Act 1961, maximum penalty 10 years'imprisonment (relating to complainant C – this charge was the onlyincident of offending against her).41 Sentencing Act 2002, s 15B.[28] In Diaz v R, this Court considered the effect of s 18 of the Sentencing Act. Itstated:42It would be inconsistent with the policy underpinning s 18 for the Court touplift a sentence of imprisonment by reference to a charge which, pursuant tos 18, could not itself result in a sentence of imprisonment. Such an upliftwould result in the young person spending (additional) time in prison as aresult of the less serious charge: the very thing that s 18 is intended topreclude.[29] In light of the effect of s 18 of the Sentencing Act on three of Mr Wiwarena'sconvictions, the Crown position is that the final term of imprisonment is ultimatelyunaffected. On appeal, and in light of that appeal being brought by theSolicitor-General and therefore requiring a conservative approach, Moore J adopted astarting point of 12 years' imprisonment. Twelve years' imprisonment is at the bottomof band 3 in R v AM.43 Even without accounting for the three offences for which MrWiwarena cannot be sentenced to imprisonment, the offending falls squarely withinband 3, thus the 12-year starting point is not affected. The extent of the discountsappropriate for Mr Wiwarena's mitigating factors are then clearly not affected.However, given the concurrent terms of imprisonment imposed on all charges, thaterror must be corrected.[30] Accordingly, the Crown is not opposed to the application for leave to bring asecond appeal for the purpose of error correction, but maintains that the sentence offive years and four months' imprisonment was available and appropriate.Decision[31] We grant leave to bring a second appeal, but only for the limited purpose oferror correction. We quash the sentences of sentences of imprisonment imposed onthe charges of indecent assault on a young person (complainant A), sexual connectionwith a young person (complainant A), and sexual connection with a young person(complainant C). Enhanced standard or standard community options such as intensivesupervision or community work are not available because of the undisturbed sentencesof imprisonment imposed on the other charges. Accordingly, Mr Wiwarena is42 Diaz v R [2021] NZCA 426 at [32].43 R v AM, above n 18, at [105].convicted and discharged on the above three charges for which he was unable to besentenced to imprisonment because of his youth at the time of the offending.[32] No other error has been identified in the judgment of Moore J. He carefullyconsidered the circumstances of the offending and of the offender and the applicablelaw.[33] Counsel for Mr Wiwarena does not specifically take issue with the startingpoint of 12 years' imprisonment adopted by Moore J. Judge Connell had adopted astarting point of nine years' imprisonment but appeared to take into accountMr Wiwarena's youth in doing so. He stated:44[34] I have come to this conclusion. I do agree that in my assessment ofthe starting point and taking account of R v AM, I must take account of theyouth of yourself, Mr Wiwarena, in these offences. I would impose a sentenceof imprisonment of nine years as a starting point.[34] We agree with Moore J that if Judge Connell did take Mr Wiwarena's youthinto account in setting the starting point then he made an error of principle.[35] The thrust of counsel's submissions is that a significantly higher discountshould have been granted for Mr Wiwarena's youth coupled with factors in thepsychologist's report and the s 27 cultural report.[36] As to the discount for youth, counsel for Mr Wiwarena refers to this Court'sdecision in Dickey v R,45 which was delivered after Moore J's judgment. Although theissue in Dickey was whether it was manifestly unjust to impose a sentence of lifeimprisonment on three teenagers who had been convicted of murder, counsel points tocomments about further research on adolescent brain development as confirming:46(a) Adolescent behaviour reflects the slow pace of the development ofthose parts of the brain that control higher-order executivefunctioning, such as impulse control, risk assessment and planningability. Young people behave and react differently from adults due tobiological rather than behavioural or personality factors. As MsBrook for the Crown said, "[a]ll young people suffer from these44 District Court judgment, above n 1.45 Dickey v R, above n 39.46 At [86].cognitive deficits; and all will eventually develop fully to overcomethem (assuming no cognitive impairment exists)".(b) Neurological development may not be complete until the age of 25.(c) Young persons who commit serious offences frequently exhibit othercharacteristics which also tend to mitigate culpability, notablyintellectual deficits, mental illness and experiences of abuse or otherchildhood trauma.(d) Young people are more receptive to treatment and therefore havebetter prospects of rehabilitation than adult offenders, who find itmore difficult to alter entrenched behaviours.[37] In Dickey, this Court commented that there was no outer limit to the discountfor youth in current sentencing practice, but discounts of between 10 and 30 per centwere common.47 Moore J stated that discounts for youth offenders in circumstancessimilar to those for Mr Wiwarena have been in the order of 30 to 40 per cent.48 Insaying so, Moore J considered four comparable cases.49 He thought BB v R,50 wasmost similar:51In BB v R, the defendant was found guilty of five representative counts ofsexual violation by unlawful sexual connection and one representative countof sexual conduct with a person under the age of 16 years.52 He offendedagainst his two stepsisters over a three-year period when he was aged between14 and 17 years old.53 While he had limited rehabilitative prospects and wasunremorseful,54 the Court of Appeal held that a 40 per cent youth discount wasavailable, albeit that it was "towards the upper reaches of the availablerange".55[38] In the circumstances, we cannot say Moore J erred in granting a 40 per centdiscount for Mr Wiwarena's youth.[39] Nor do we see any error in the discount of 10 per cent (rather than 15 per cent)granted by Moore J for the factors identified in the psychologist's report and s 27cultural report. The psychologist stated in the s 38 report:47 At [175].48 High Court judgment, above n 3, at [41].49 At [41] citing BB v R, above n 32; V (CA400/12) v R [2012] NZCA 465; M v R [2018] NZCA 630;and Clarke v R [2016] NZCA 91.50 BB v R, above n 32.51 High Court judgment, above n 3, at [41(a)] (footnotes in original).52 BB v R, above n 32, at [1].53 At [5].54 At [12].55 At [13].[Mr Wiwarena] has a childhood history of multiple moves within both NewZealand and Australia and he attended a number of schools as a result. Hedenies any childhood physical, sexual or emotional abuse, but his mother wasa heavy drinker and his father often lived away from the family.It appears that observing and later participating in heavy drinking has been aregular feature of his life with his family. It seems possible that inadequatesupervision of children occurred at these events and some of the offendingreportedly occurred at these times.[40] The s 27 cultural report writer concluded:There is obvious social and economic depravity that exists in this whanau, butit is difficult to make clear links between [Mr Wiwarena's] background andhis offending, due to his age and lack of immaturity [sic], as well as his limitedability to share relevant details with respect to his cultural and familybackground.[41] In the present circumstances, where the offending cannot be definitively linkedto factors in Mr Wiwarena's background, a more substantial discount is notwarranted.56[42] Finally, we acknowledge that the substitution of a sentence of imprisonmentfor a sentence of home detention can be seen as unfair, especially by a young offender,but this was recognised by Moore J. He agreed with the approach taken by Downs Jin R v LB, where Downs J had discounted the otherwise appropriate sentence ofimprisonment by eight months for an offender who had served three months of homedetention to recognise "the stress on a defendant who, months after sentencing, mustnow go to prison." 57[43] We agree with Moore J that Mr Wiwarena's repeated offending againstmultiple complainants, of a serious nature and over such an extended period, meansthat home detention is simply not an available sentencing option. A non-custodialsentence cannot be artificially reached by setting a low starting point and applyingoverly generous discounts.56 See Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [107]–[111].57 High Court judgment, above n 3, at [51]–[52] citing R v LB, above n 15 at [57].Result[44] The application for leave to bring a second appeal is granted for the limitedpurpose of error correction.[45] The appeal is allowed to the extent that the sentences of imprisonment imposedon Charges 1, 4 and 11 are quashed and replaced by convictions and discharges.[46] The application for leave to bring a second appeal is otherwise declined.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent