CRUMP v R [2020] NZCA 287

CRUMP v R [2020] NZCA 287 [17 July 2020]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA586/2019[2020] NZCA 287BETWEEN SHJONEN BENJAMIN CRUMPAppellantAND THE QUEENRespondentHearing: 12 May 2020Court: Kόs P, Venning and Mallon JJCounsel: J D Munro and J N Olsen for AppellantB F Fenton for RespondentJudgment: 17 July 2020 at 11 amRecalled andReissued:20 July 2020JUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is allowed.C The sentence of two years and nine months' imprisonment is quashed, and asentence of 18 months' imprisonment is substituted.____________________________________________________________________REASONSPara No.Mallon JVenning JKós P[1][57][76]MALLON JTable of ContentsPara NoBackgroundThe evidence on the rape chargeThe closing addressThe Judge's summing upAssessment of the conviction appealThe direction on withdrawn consentResponse to jury questionsDirection on regret or reluctanceConclusion[3][12][20][23][27][27][41][53][55][1] The appellant (Mr Crump) was tried before Judge Dawson and a jury in theDistrict Court at Whangārei on a charge of rape and charges of physical assault of andthreatening to kill his then partner (Ms B).1 He entered guilty pleas at the beginningof the trial on one charge of endangering transport and two of the seven physical assaultcharges. The jury convicted Mr Crump on the rape charge but acquitted him of theother charges. He was sentenced to two years and nine months' imprisonment.2[2] Mr Crump appeals the rape conviction.3 He contends that a miscarriage ofjustice occurred because the trial Judge failed to give the jury directions tailored to theevidence on withdrawal of consent and that true consent can be hesitant, reluctant orregretful. He says this was necessary in the circumstances of the case which, at leastat the outset, involved consensual sexual activity initiated by his partner. He saysthe Judge's error was exacerbated by the failure to assist the jury when they asked forassistance during their deliberations.[3] In the alternative, Mr Crump appeals his sentence on the ground that it ismanifestly excessive.41 Crimes Act 1961, ss 128(1)(a), 128B, 193, 194(b), 202C, 270(1)(a) and 306.2 R v Crump [2019] NZDC 20090 [Sentencing notes].3 Criminal Procedure Act 2011, s 232.4 Section 250.Background[4] Mr Crump and Ms B commenced a relationship in late 2015/early 2016, whenhe was 24 and she was 20 to 21 years old. They began living together a couple ofweeks into the relationship in a house owned by Mr Crump's mother. The relationshiplasted for about a year, with a split for two months around July 2016, and came to anend in December 2016. It was a "toxic" relationship, as described by the trial Judgein sentencing Mr Crump.5[5] Mr Crump moved to Australia in April 2017. Ms B first went to the police withallegations about Mr Crump in May 2017. In an electronically recorded evidentialinterview she gave an account of abusive conduct by Mr Crump throughout theirrelationship. This involved physical violence, generally of a low-level kind and oftenassociated with accusations that Ms B was sleeping with other men. Ms B also allegedshe had been raped following consensual sexual activity initiated by her.[6] Mr Crump was interviewed by the police on 9 January 2018 when he was inNew Zealand on holiday. As with Ms B, his interview was electronically recorded.Mr Crump said their relationship was good in the beginning but went downhill with abit of violence on both sides. He accepted some of the incidents Ms B had describedbut not others. He also accepted there was an occasion where Ms B had accused himof raping her but he did not think he had. He said he had ended the relationship becausehe could not handle the drama. There had been some contact while he was in Australia.They had also been in text contact in the two days prior to Mr Crump's interview, withMs B suggesting they go for a cruise in her new car.6[7] In January and May 2018, Ms B was in contact with the police to say that shedid not want to proceed with the charges. The police proceeded to file charges inNovember 2018 based on B's evidential interview. Mr Crump was arrested when hereturned to New Zealand to visit a sick relative. The trial took place over five daysbeginning on Monday 19 August 2019.5 Sentencing notes, above n 2, at [19].6 The text messages were produced at trial. On 6 January 2018 Ms B sent a picture of her car whichshe said was a birthday present. He suggested she pick him up. She had replied "Yeah, youreckon? Go for a cruise". They also messaged each other on 8 January 2018. She sent a pictureof herself and said she was chilling in the sun.[8] At the beginning of the trial, Mr Crump pleaded guilty to three charges: assaultwith a weapon (hitting Ms B with a television remote); male assaults female (shakingMs B on the bed); and endangering transport (pulling on the handbrake of the car Ms Bwas driving, causing it to leave the road). The trial proceeded on the remainingcharges.[9] The Crown case principally relied on Ms B's evidence. A work colleague andthe mother of a former boyfriend of Ms B's were also called to corroborate someaspects of Ms B's allegations.7 The Crown also played Mr Crump's recordedinterview. Mr Crump elected to give evidence. His evidence was consistent with hisearlier recorded interview.[10] The Judge summed up on the morning of Friday 23 August 2019. The juryretired to deliberate at 10.53 am. They sent written communications seeking furtherinformation or advice at three stages. At 4.55 pm they advised they had reachedunanimous verdicts.[11] The jury returned not guilty verdicts on the physical violence charges: maleassaults female (pushing Ms B's head against a car window); threatening to kill (tellingMs B he would kill her if she slept with anyone else); assault with intent to injure(forcing B's head on the floor); assault with intent to injure (putting his hands aroundMs B's neck); and male assaults female (pushing Ms B in the chest). The jury returneda guilty verdict on the rape charge.The evidence on the rape charge[12] Ms B's evidence in chief was given by way of her recorded police interview.Her account of the rape in that interview was as follows:(a) One Sunday, some time before they had the period of separation in July,she and Mr Crump were lying together on the bed on their backs looking7 A work colleague gave evidence that Ms B had told her she had been raped. She also said she sawbruises on Ms B and that Ms B started wearing clothes that covered up her body. The mother ofthe former boyfriend had received a telephone call from Ms B, who told her she had fought withthe appellant and had locked herself in the bathroom. The mother went to the house to collectMs B and found Ms B to be crying and upset.at the TV. She started kissing Mr Crump and "rubbing on him",but then stopped and said "Sorry, I don't wanna do this".(b) Mr Crump started kissing her and saying "Come on baby, this is whatyou wanted". She said "No" and she flipped onto her stomach andturned so that she was lying the other way around with her head nowclosest to the TV.(c) Mr Crump was on top of her. He kept saying "Let's do this" and"Can I?". She said "No" and had her legs together. Mr Crump movedher underwear to the side and put his penis in her vagina saying "Can Ido this? Let me do this, this is what you want" and Ms B kept saying"No". She said "No. No. No" in an "average-tone".(d) When he finished, his face was next to her face, his arm was on her backand he said "Baby, I love you". She was in tears, got up and put herclothes in the wash and had a shower. She didn't speak to Mr Crumpfor a long time that day but later on she told him he had raped her andshe had not wanted to do that. Mr Crump said he had not raped her andshe said "Well, then why do I feel this way".[13] In cross-examination she accepted that, in addition to caressing Mr Crump'sbody and his penis with her hands, she had put his penis in her mouth. She acceptedshe could have said "Let's do this". She maintained that after the oral sex she did notwant to continue. She maintained she said "no" numerous times.[14] In re-examination Ms B elaborated on the number of times she had said "no":A. When I was on the bed, I said, "I don't want to do this." And then when I was on the floor I, I said no four times and he kept saying "You want this" and saying things like "Can I do this,"you know, while he was doing what he did and in between it I said yesand just started crying and then – I must have said no about 10 timesafter that Q. Okay, and when you said no, what was happening at that point?A. he was on top of me with his penis in my vagina.Q And how many times did you say you said no?A. At least 15 times.[15] Ms B also accepted in cross-examination that she and Mr Crump had sex afterthis occasion and that she was devastated when the relationship came to an end.[16] Mr Crump's account in the recorded interview was as follows:(a) Some time towards the end of their relationship there was an occasionwhen they had sex which Ms B had initiated and which she laterclaimed was rape. Ms B initiated sex by giving him oral sex. She thentook off her clothes, got on top of him and they had sex.(b) They changed positions to the "doggy style" and continued having sex.Part way through this, Ms B said she did not want to do it anymore.The sex carried on for a bit and she was like "Oh, I don't want it" andthen it "finished not long after that".(c) Afterwards Ms B said it was rape. Mr Crump did not think it was.They got back together about two weeks later. The relationship wasquite good for about another two weeks and then they broke up.(d) After their break-up, Ms B stayed in the house for a period and whenMr Crump came back to get his stuff they had sex. His mother endedup kicking Ms B out of the house because of the damage she had causedto the place.[17] His evidence-in-chief was consistent with his interview. He discussed howMs B had initiated the sex, rubbing his penis and giving him oral sex, removing herunderwear and jumping on top to have sex. He said:A. So that went on for about five minutes and then we rolled over ontothe doggy-style position she was facing the TV, we continued tohave sex. Halfway through that she was like, "Oh no, I don't wantthis no more." I'm like, "What are you talking about, we're halfwaythrough sex, this is what you wanted." so we continued. she said no again and I was just, it wasn'tregistering at the time that she didn't want this because this wasnew to me. we always had sex on occasions. So while we werehaving sex and she continued to say no about four times, not long afterthat it finished and we stopped. It was over.Q. had she ever said any words like, "No" or "Stop" before?A. No, never. I couldn't understand why in the moment, why she was saying nowhen she initiated the sex. she just said that "You raped me." I was like, "No I didn't, I did not rape you, what are you talkingabout?"Q. why did you say that?A. Because I didn't feel like I just raped her.Q And why didn't you feel like you have just raped her?A. Because I was just dumbfounded like we had sex a lot of the timein our relationship. it just didn't register at the time that she wassaying no.[18] In cross-examination Mr Crump's evidence was:Q. Even if we accept your account you still continued to have sex withher despite clearly knowing she didn't want to, didn't you?A. Not clearly knowing, no because it didn't register to me at the time.Q. [in the police interview] You say very clearly, "She did say no andI did carry on which I shouldn't have but I did."A. Yes. looking back on it, so at the time I was very unsure andconfused about her saying no, she's never ever said no while we'rehaving sex after she continued to say no again, it finished not longafter that. So I did carry on, that's what I mean. there is a chance that she said [no] four times yes. but not 15 times like she's saying.Q. And you say she had never said no or stop before?A. Yes.Q. Well wouldn't that have made you stop?A. Well like I said it didn't last very much longer after that, I justrealised that she didn't want it so I stopped.Q. Well in your mind did you feel like you could have sex with herbecause she had come onto you?A. Yes I did.Q. Did you feel like you were entitled to have sex with her because shehad been the one that had initiated it?A. Yes.Q. Even though she told you even on your account that she said no fourtimes?A. Yes.[19] In evidence-in-chief, Mr Crump said that when she came back to pick up herbelongings she was very upset, saying he had raped her and she was going to call RapeCrisis, and "I just couldn't believe the words coming out of her mouth".The closing addresses[20] In closing to the jury, the Crown submitted the primary evidence for the jury toconsider was Ms B's account of what occurred. The Crown went on to submit that,even on Mr Crump's account, the jury could be sure of his guilt. On that account,the Crown submitted Mr Crump had felt entitled to have sex with Ms B because shehad initiated it, even though he heard her say "no" at least four times. The Crownsubmitted a reasonable person would pause given how many times she said "no" andbecause it was unusual for Ms B to say this.[21] The defence submitted that Mr Crump believed on reasonable grounds thatMs B was still consenting. The defence asked the jury to focus on Mr Crump's beliefat the exact time that sex was occurring. The defence submitted Mr Crump's commentthat "I shouldn't have but I did" was his view in hindsight, not his view at the time thatsex was taking place. The defence also made submissions about why the jury couldrely on Mr Crump's evidence over that of Ms B, including because his account wasmore plausible and he had been prepared to make concessions that were not in hisinterest.[22] The defence accepted that at some point Ms B withdrew consent.In considering Mr Crump's belief at this time and the factors that led to his belief,counsel said: these two aren't strangers, they know each other's nuances or preferences,they instinctively know each other intimately, you might think. clearly herinitiating the sex would have, you might think, created an expectation in himthat he's about to have sex, that she's willing to have sex, that's the mindsethe would have started with, and that expectation is enhanced you might think,by her [saying], "Let's do this." They are both aroused. She rubs his penis,performs oral sex on him before they try one position, then try anotherposition.Now the law around this area of consent, is that when there was initiallyconsensual sex and consent is then withdrawn, any delay in disengaging oncethe defendant realises that the complainant is no longer consenting, should beapproached in a realistic way. You need to take a realistic approach to this.This isn't a scenario where every time there's a change in position there has tobe some consultation or some meeting to determine what the next step is. It is such a different scenario from the sterile environment of the courtroom you're having to judge someone in an environment that is fluid, it isinstinctive, it is not scripted, it is not planned.Basically, you have to judge this man by putting yourself in his shoes, so tospeak, and look at what was reasonable in those circumstances. If he wasconfused as to what's happening, then he's not believing she wasn'tconsenting.You heard him today, "It didn't register, I was confused." "I was just,realised that she didn't want it so I stopped." At the end of the day he hasn't shied away from the fact that he acknowledgedthere was a problem while they were having sex It doesn't detract from thefact that he couldn't get his head around the issue, that it didn't register.The penny did drop for [Mr Crump] but regrettably it dropped too late.The Judge's summing up[23] As part of his summing up, the Judge distributed a question trail to the jury.On the rape charge the question trail was as follows:Step 1: Are you sure that [Mr Crump] sexually penetrated [Ms B]by introducing his penis into her genitalia?NB: Introduction to the slightest degree of a penis into thegenitalia of another person is sufficient to effectsexual penetration.If "no", find the defendant "not guilty" of charge 1.If "yes", go to Step 2.Step 2: Are you sure that [Ms B] did not consent to this penetration?NB: "Consent" means true consent, freely given by aperson who is in a position to make a rationaldecision. Lack of protest or physical resistance doesnot, of itself, amount to consent.If the person gives consent to sexual contact at thattime, but later regrets the contact, they have stillconsented to that contact.A person can withdraw their consent to sexual contactat any time.A person does not consent to sexual activity if she allows theactivity because of:(a) force applied to her; or(b) the threat (expressed or implied) of the application offorce to her; or(c) the fear of the application of force to her.If "no", find the defendant "not guilty" of Charge 1.If "yes", go to Step 3.Step 3: Are you sure that [Mr Crump] knew that [Ms B] was notconsenting to the penetration?If "yes", find the defendant "guilty" of Charge 1.If "no", go to Step 4.Step 4: Are you sure that [Mr Crump] did not believe on reasonablegrounds that [Ms B] was consenting to the penetration?NB: "Reasonable grounds". You need to consider whethera reasonable person in the defendant's shoes wouldthink the complainant was consenting. That isconcerned with the belief of a reasonable personplaced in the defendant's position.If "no", find the defendant "not guilty" of Charge 1.If "yes", find the defendant "guilty" of Charge 1.[24] In summing up to the jury, the Judge read out these steps and the notes undereach step. He added:(a) In relation to step 1, there was no dispute about whether there was penilepenetration but it was still a matter for the jury.(b) In relation to step 2, there were two possible scenarios for the jury toconsider, namely: (1) did Ms B not consent to penetration right fromthe start; and (2) if Ms B later consented to the initial penetration, didshe withdraw her consent? If the jury found she did not consent to theinitial penetration or that she later withdrew her consent but thepenetration continued, then the jury were to go to step 3.(c) In relation to step 3, it was Mr Crump's subjective belief that wasimportant and the jury needed to consider this question looking at allthe circumstances from his point of view.(d) In relation to step 4, this was an objective test looking at thecircumstances and the point of view of a reasonable person.Mr Crump's belief in Ms B's consent must be a reasonable belief andnot an irrational belief.[25] The Judge did not tie the steps to the competing evidence relevant to them, nordiscuss what the Crown and the defence submissions were on each of those steps.Separately, he summarised the respective submissions made in the closing addresses.His summary of the defence submissions on the rape charge was follows:[42] With respect to the rape charge, the defence submit that you have tolook at the context of what went on at the exact time that is relevant. They saythe evidence indicates that [Ms B] initiated the cuddling. She performed oralsex on him for [around] 10 minutes and then rolled over saying, "Let's dothis." The defendant says it was only after sexual intercourse was wellunderway that [Ms B] said "no".[43] [Ms B] accepted in evidence that she had on previous occasions said,"Wait," and "Hold on," when she wanted to change sexual positions duringintercourse. We also heard that at some stage during their sexual conduct[Ms B] said "yes", but we do not know at what point that was said.[44] Given all that context, the defence submit that at the time [Ms B] saidno the defendant was confused about her meaning. She had never said "no"before during sex and on this occasion it was sexual conduct that she hadinitiated and participated in.[45] The defence submit that [Mr Crump] made a mistake at that time butit was not a mistake for which you should be held criminally liable over.His state of mind was evidenced by him saying shortly afterwards that he hadnot raped her as that was his belief.[26] The Judge also gave a generic tripartite direction, not tied to any charge or thecompeting evidence on those charges.Assessment of the conviction appealThe direction on withdrawn consent[27] Mr Crump submits that the trial Judge erred by not giving an adequate directionon withdrawal of consent during sexual intercourse. He referred to R v Kaitamaki,McDonald v R and BC (CA44/2013) v R in support of his submission.8 He submits animportant component of an adequate direction is that Mr Crump must realise thatconsent has been withdrawn and this must be assessed in a realistic way. He submitsthe Judge's failure to give this direction was compounded by the Judge's response tothe jury communication requesting a definition of rape. In that response the Judge8 R v Kaitamaki [1980] 1 NZLR 59 (CA); McDonald v R CA106/99, 1 September 1999; andBC (CA44/2013) v R [2013] NZCA 140.merely referred the jury back to the question trail without providing the context ofwhat the defence was.[28] The Crown submits the Judge's directions on reasonable belief in consent inhis summing up and in the question trail were orthodox. It included a direction thatconsent can be withdrawn. The Crown submits that, in referring the jury back to thequestion trail, he ensured the jury would arrive at a verdict via the appropriatechannels. The Crown also submits that it would not have been appropriate to focusthe jury on the defendant's belief in consent at the time it was withdrawn. This isbecause it would have inappropriately relegated an important feature of the Crown'scase, namely that Ms B had not consented to the penetration from the outset.[29] The Judge's directions on the elements of rape in the question trail werecertainly orthodox. Usually, in straightforward cases it will be sufficient to providedirections in these terms. Usually, in such cases it will be sufficient (if not bestpractice) to summarise, accurately, the respective cases on the evidence withoutdirectly tying them to the question trail because it will be obvious to the jury how therespective cases fit in with the elements of the charge.9[30] However, this was not a straightforward case. First, there was the complicationthat the Crown was relying on alternative theories for a guilty verdict. One theory,based on the jury being sure that Ms B's evidence was truthful and reliable, was thatMs B never gave her consent to any penetration. The other theory, based on acceptingas reasonably possible Mr Crump's version of events, was that Ms B initially gave herconsent to penetration (indeed, initiated this activity) but subsequently withdrew herconsent in the course of its occurrence. Because there were alternatives, it wasimportant for the Judge to identify them for the jury and to explain how to workthrough the question trail depending on their assessment of whether they were sureMs B's evidence was truthful and reliable or whether they considered it wasreasonably possible that Mr Crump's evidence was what occurred.9 See Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 for an example of where an appeal wasallowed in part because of the imprecision of the summing up and the lack of connection betweenthe law and the facts.[31] The second complicating factor arose if the jury accepted Mr Crump's versionof events as reasonably possible. It is here that the cases Mr Crump has referred to arerelevant. I turn first to Kaitamaki.10 It concerned whether, as a matter of law, theoffence of rape could be committed when there is consent to intercourse at the outsetbut the consent is withdrawn part way through the act. A majority of this Court(Richmond P and Richardson J) held that it could constitute rape and that thereforethe trial Judge had been correct to direct the jury that "if, having realised she is notwilling, he continues with the act of intercourse, it then becomes rape".11 This wasupheld by the Privy Council on appeal.12[32] Here there was no issue that rape could still occur if consent was withdrawnpart way through the act of intercourse. It was also accepted by the defence thatconsent had been withdrawn. For the defence the issue was whether and whenMr Crump realised this and whether there were reasonable grounds for him to believeMs B was still consenting. It is on these elements of rape that the direction inKaitamaki is helpful. The jury needed to be directed that, if they considered itreasonably possible that Ms B consented initially to penetration, but withdrew herconsent during it, (1) at step 3 of the question trail they needed to be sure thatMr Crump continued with the penetration knowing she was no longer consenting, and(2) at step 4 they would need to be sure that Mr Crump continued penetration when areasonable person would not believe Ms B was still consenting. In other words,to convict a juror needed to identify a point in time when there was, or should havebeen, appreciation that consent had been withdrawn, and then the continuation ofpenetration after that point.[33] The Judge correctly directed the jury at step 2 that consent could be withdrawn.He also correctly directed the jury at this point that there were two scenarios for thejury to consider: whether Ms B did not consent at the outset; or if she consented to theinitial penetration and later withdrew it. However, as it was put in this Court's decisionin Everson v R, "there was no equivalent instruction as to the significance,in relation to the defence of belief on reasonable grounds, of the withdrawal of a10 R v Kaitamaki, above n 8.11 At 60 and 63.12 R v Kaitamaki [1984] 1 NZLR 385 (PC).perceived consent".13 This can be contrasted with McDonald, where a direction in theform from Kaitamaki was given and reiterated with particular reference to the facts ofthe case.14[34] A third factor raised on Mr Crump's narrative with which the jury potentiallyneeded assistance was whether Mr Crump must cease penetration the very moment herealised that Ms B was no longer consenting. It was this that concerned the dissentingJudge (Woodhouse J) in Kaitamaki who said:15In essence the jury was directed that a man could become guilty of rapinga woman during the one act of intercourse to which she had given her priorconsent. It means that after he had entered her with consent she couldtransform his innocent and acceptable conduct into criminal activity of themost serious kind should he fail to meet her sudden indication that he mustleave her. It is not explained just how rapidly he would need to act upon thatindication to avoid becoming a rapist. As a matter of common sense the ambit and effect of the relevant consent mustbe consent to no more but also to no less than what is intended to follow: anormal act of intercourse. [35] This was 40 years ago. The Judge's view that consent applies to the act ofintercourse until its completion did not prevail. However, his concern about howquickly a consensual act could become a criminal act remains a valid one. It apparentlytroubled the jury in BC (CA44/2013) v R, which sought a direction during theirdeliberations about consent as follows:16We have an issue regarding the definition of consent.Assuming both parties have agreed to sexual intercourse, then at some stage,say 4/5ths through the act, one party says, "No – stop", and the other personcarries on for 5 to 10 seconds, during which time he ejaculates and thenwithdraws, does that constitute rape?[36] The trial Judge's response included the following:17If a party withdraws consent after consensual sexual intercourse commences,the other party must discontinue without delay. If he does not do so, he will13 Everson v R CA194/95, 9 November 1995 at 5.14 McDonald v R, above n 8, at [15]–[16].15 R v Kaitamaki, above n 8, at 64.16 BC (CA44/2013) v R, above n 8, at [21].17 At [22].be guilty of sexual violation. Whether there is ejaculation or not is irrelevant.If he delays withdrawing, whether in order to ejaculate or not, he will be guiltyof sexual violation by rape.However, we expect juries to approach the question of delay in a realistic way.[37] This Court approved this part of the trial Judge's response as "perfectlyadequate".18 No such direction was given here. Where there is an available narrativeof withdrawn consent, I consider the direction should be given that where a partyappreciates consent has been withdrawn, or should reasonably have appreciated thatfact, he must discontinue penetration. But I do not consider the second part of theBC (CA44/2013) v R direction is required — i.e. a direction to take a "realistic"approach be given. That is inherently vague in its own terms and invites invalid,stereotyped reasoning overriding the autonomy of the complainant.19[38] The different point, whether it was reasonably possible that in thecircumstances of the case that there might be a delayed appreciation by Mr Crump thatMs B was no longer consenting, was a factual matter on which submissions fromcounsel were made to the jury. It did not require a tailored legal direction respondingto this issue. On the particular facts of this case, where withdrawn consent to initiallyconsensual intercourse was a reasonably available narrative, the jury needed to begiven the direction indicated at [32] above.[39] In considering whether the defendant actually appreciated consent had beenwithdrawn the context of the intercourse was relevant. The jury could take intoaccount that the couple were having intercourse of a kind that was not out of theordinary for this couple, that Ms B had initiated the sexual activity and that penetrationwas in progress when Ms B first started saying no. The jury would need to bear thosecircumstances in mind in deciding whether the defendant actually appreciated consenthad been withdrawn, but continued penetration. When considering what the jury madeof Mr Crump's evidence that it "just, it wasn't registering at the time" these18 At [26].19 Elisabeth McDonald Rape Myths as Barriers to Fair Trial Process (Canterbury University Press,Christchurch, 2020) at 317 and 393–394. These observations were made in relation to generaliseddirections to consider all the circumstances and to apply "common sense". We consider the sameconcerns apply equally to a direction to take a "realistic" approach.circumstances were relevant. So too, as the Crown submitted, was the evidence thatMs B said "no" at least four times and she had not said no before.[40] The jury should also should have been directed that, when considering at step 4the question of whether a reasonable person would have appreciated that consent waswithdrawn, so that penetration must then end, the same circumstances as they took intoaccount at step 3 (when deciding on what the defendant actually appreciated) remainedrelevant at step 4 in deciding what a reasonable person in the defendant'scircumstances would have appreciated about consent from what was said and done.Response to jury questions[41] The jury's questions during deliberations reinforce my view that the Judge'sdirections were insufficiently tailored to the circumstances. The jury indicated theneed for further advice but did not receive it.[42] The first sign of difficulty came at 2.55 pm when they communicated, "cannotagree on a charge. Advice accordingly". By this stage the jury had been deliberatingfor four hours. The question indicated they were stuck on one charge.20 It did not saythey had reached agreement on the other charges, although this was possibly implied.If that was so, the jury had made progress, suggesting they were properly dischargingtheir duty but needed assistance on the one charge on which they were apparentlystuck.[43] At this point, the jury had not been given a majority verdict direction.The usual course would have been for that direction to have been given. While it wasa matter for the trial Judge, that direction could have been accompanied with anenquiry as to whether there was any particular matter on which the Judge could assistwith further directions. Instead, however, the Judge gave the jury what is known asthe full Papadapoulos direction. He then went on to give them the standard majority20 Earlier, at 12.48 pm, the jury had asked a question about one of the physical violence charges andat 1.00 pm had also asked for a transcript of what Ms B's work colleague had said to the police(it having been put to her in cross-examination that her evidence was inconsistent with her earlierstatement to the police).verdict direction. In other words, he gave a combined Papadapoulos and majorityverdict direction.[44] In doing so, the trial Judge departed from the general approach as set out bythe Supreme Court in Hastie v R:21[14] Without limiting that discretion, we observe that, generally speaking,we think it desirable to keep an informational direction about the mechanicsand requirements of majority verdicts separate from any Papadopoulosdirection or its equivalent. It would be rare, we think, for a judge to givea Papadopoulos direction prior to giving a majority verdict direction.Probably the only occasion when that might be appropriate is when theindication of deadlock arises before the jury has been deliberating for fourhours, at which point a jury cannot be discharged.[15] If the jury, having been given a majority verdict direction, comes backand indicates even a majority verdict is not possible, then the judge couldconsider a Papadopoulos direction. (Footnote omitted.)[45] In accordance with this general approach, in Court for chambers the prosecutorand defence counsel initially proposed that the Judge give a majority verdict directionin response to the jury communication. The Judge proposed instead that he give botha majority and Papadopoulos direction and counsel did not object. A trial judge isuniquely placed to assess the situation. However, it is unclear here why he thoughtthis was one of the "rare" cases where it was appropriate to give a Papadopoulosdirection before reminding the jury and further directing them on the fact that amajority verdict would be acceptable.[46] At 3.45 pm the jury sent a further communication which said "can a precisedefinition of rape be provided". The Judge again discussed this first with counsel inCourt for chambers. Counsel agreed with the Judge's proposal that the jury be told towork their way through the question trail. The Judge then called the jury into courtand gave the following answer at 4.03 pm:My answer for that is, "No, you do not need a definition."You need to work your way through the steps set out in charge 1, one step at atime starting with step 1, and then going through each of the steps in the order21 Hastie v R [2012] NZSC 58, [2013] 1 NZLR 297.in which they appear. The answer you come to at the end of each step willthen indicate what you should do next.Now I remind you that the step 1, the active penile penetration of thecomplainant's vagina, is not in dispute. All the evidence in the trial is thathappened.Now I ask you to go back to the jury, continue your deliberations and gothrough each step logically, one at a time, and the answer at the end of eachstep will indicate what you should then do next and that should lead you to theverdict one way or the other.[47] This was an opportunity to provide the jury with greater assistance about howthe question trail tied in with the respective cases, especially as they had not been giventhat in the summing up. The question the jury had asked confirmed what the Judgeand counsel surmised to be the charge they had been stuck on earlier. While one cannever be sure why a jury is asking a question, the communication here suggested oneor more members of the jury were struggling with the idea that there could be rapewhen penetration had been consented to at the outset. As the jury communication inBC (CA44/2013) v R bears out, it will not necessarily be obvious to a jury how toapproach a charge of rape if sexual intercourse is consented to at the outset. It confirmsthe need for more tailored directions where there is an available narrative of consentgiven to intercourse, but then withdrawn.[48] Directing the jury back to the question trail, while emphasising that penetrationwas not in issue, left the jury unclear about how to assess belief in consent onreasonable grounds in these circumstances. Against the background of the seeminglyunnecessary Papadopoulos direction, there was a risk of a miscarriage of justice whenthe jury returned their verdict five minutes before the end of the working week.[49] The Crown submits that a guilty verdict was virtually inevitable onMr Crump's own evidence. It submits evidence of his account that he actuallybelieved Ms B was consenting was scant and it would have been perverse tocharacterise any such belief as reasonable. I do not agree. While it was a matter forthe jury, it was open for them to conclude that, although he heard Ms B say "no", thepenny did not drop immediately that "no meant no" in the context of what was usualsexual intercourse for them, and which had begun at Ms B's instigation. It was alsoopen to the jury to conclude that his delay in comprehending that she was no longerconsenting was objectively reasonable in the circumstances given that context.[50] I consider the President's assessment of the evidence (at [86]–[87]) thatMr Crump had to have appreciated that Ms B was not consenting is contrary toMr Crump's evidence about this. His consistent evidence was that it did not registerwith him that she no longer consented to the sex. In reply to what made him "stop",he said he "just realised that she didn't want it so I stopped". Consistent with this,when Ms B accused him of having raped her after the sex was over, he responded toMs B that he had not raped her, because "I didn't feel like I just raped her". It was fora properly directed jury to decide whether this evidence, of what he actuallysubjectively thought, was credible to give rise to a reasonable doubt.[51] Likewise, I consider Venning J's assessment of the evidence (at [66]), that atbest Mr Crump was confused (despite his evidence that it did not register with him thatshe no longer consented), was for the jury to assess.[52] That there was not one way Mr Crump's view could be interpreted is evidentfrom the fact that the jury apparently had difficulty in reaching agreement on whetherthe rape charge had been proven. It is relevant too, that this jury, who had heard andseen Ms B and Mr Crump give evidence, had given Mr Crump the benefit of the doubton the other charges. With tailored directions on the key issues on the rape charge, andwithout the pressure of the Papadopoulos direction, they may have also givenMr Crump the benefit of the doubt on this charge.Direction on regret or reluctance[53] Mr Crump submits the Judge should have given a direction that regret orreluctance does not amount to a lack of consent.22 Mr Crump submits this should havebeen given because Ms B was giving mixed messages about her consent. The Crownsubmits that a regret or reluctance direction was not relevant to a live issue at trial —the only live issue was whether Mr Crump reasonably believed in Ms B's consent.The Judge's direction was therefore sensible and orthodox.22 Herbert v R CA81/98, 12 August 1998 at 3–4; and Henry v R [2019] NZCA 266 at [17].[54] The trial Judge's question trail included that consent that is given can beregretted. That was sufficient in the circumstances of this case. Mr Crump acceptedthat Ms B had said "no" possibly up to four times. Defence counsel said in closing itwas accepted that consent had been withdrawn. Consent given reluctantly or laterregretted was not a live issue and required nothing further from the Judge.Conclusion[55] I would allow the conviction appeal. Tailored directions on how to assess thecharge of rape, if the jury accepted Mr Crump's version of events was reasonablypossible, were necessary and not given. This error was compounded by giving aPapadopoulos direction before the jury had been given a majority verdict direction.The opportunity to rectify the absence of tailored directions was not taken whenthe jury later sought a definition of rape. In combination, I consider there is a real riskof a miscarriage of justice.[56] I agree with the President's judgment on the sentence appeal.VENNING J[57] I have had the opportunity of reading in draft the reasons for judgment ofMallon J. I take a different view and would dismiss the appeal against conviction.In my view the answer to concerns as to Mr Crump's culpability lies in the appropriatesentence.[58] As the majority recognise, the Judge's directions on the elements of rape in thequestion trail were orthodox. They correctly identified the elements the Crown wasrequired to prove beyond reasonable doubt for the jury to convict Mr Crump.[59] I do not consider there is anything to be made of the alternative theories ofconsent point and the possible impact of them on the remaining elements of theoffence. Whether Ms B did not consent to penetration at the outset or whether sheinitially consented but then withdrew her consent during the act itself, in eithersituation Ms B did not consent to the penetration. In R v Kaitamaki this Courtconfirmed that the act of penetration is ongoing.23[60] In Everson v R this Court accepted there were alternative theories upon whichthe Crown could rely to prove lack of consent.24 The jury could have found the initialpenetration was while the complainant was asleep and on that basis the appellant couldnot have had reasonable grounds to believe she was consenting, or alternatively, theymay have accepted her evidence that she had made two requests of him to get off her.As the Court noted, either would be a sufficient basis to find against the appellant onthe issue of consent. The Court rejected a criticism of the way the Judge dealt withthe appellant's belief in consent. It did not consider it was necessary for the Judge togive what has become known as the Kaitamaki direction.25[61] The Court in Everson considered the failure to give such a direction wasanswered by the evidence which could not have supported a finding the appellantmight have withdrawn as soon as he realised the complainant was not consenting.[62] In the present case the Judge's directions and question trail accurately dealtwith the issue of withdrawal of consent. He expressly directed the jury that a personcan withdraw their consent at any time.[63] It is very difficult, in light of Mr Crump's own evidence, to suggest that it wasnot then open for the jury to find beyond reasonable doubt he knew Ms B was notconsenting to the continued penetration or (even if that hurdle was crossed) that he didnot believe on reasonable grounds Ms B was consenting.[64] On the appellant's own evidence-in-chief he said: halfway through that she was like, "Oh no, I don't want this no more." I'mlike, "What are you talking about, we're halfway through sex, this is what youwanted."23 R v Kaitamaki, above n 8, affirmed by the Privy Council in R v Kaitamaki, above n 12.24 Everson v R, above n 13.25 The Kaitamaki direction is typically: "If after he has penetrated the woman a man realises that sheis not consenting, or has never consented but he continues in the act of intercourse, that act ofintercourse then becomes rape". See for example McDonald v R, above n 8, at [15]. so we continued. she said no again and I was just, it wasn't registeringat the time that she didn't want this because this was new to me. wealways had sex on occasions. So while we were having sex and she continuedto say no about four times, not long after that it finished and we stopped. Itwas over.Importantly, Mr Crump also confirmed that Ms B had never said words like "no" or"stop" before, during intercourse. That alone should have alerted him to the fact shewas not consenting on this occasion, quite apart from the fact she had repeatedly saidno.[65] And then under cross-examination there was the following exchange:Q. Even if we accept your account you still continued to have sex withher despite clearly knowing she didn't want to, didn't you?A. Not clearly knowing, no because it didn't register to me at the time.Q. [in the police interview] You say very clearly, "She did say no andI did carry on which I shouldn't have but I did."A. Yes. looking back on it, so at the time I was very unsure andconfused about her saying no, she's never ever said no while we'rehaving sex after she continued to say no again, it finished not longafter that. So I did carry on, that's what I mean.there is a chance that she said [no] four times yes. but not 15 times like she's saying.Q. And you say she had never said no or stop before?A. Yes.[66] Mr Crump's best case is that Ms B initially consented but then withdrew theconsent, and he was confused about that. As his counsel submitted, if he was confusedit could not be said that he did not believe she wasn't consenting. Further, counsel toldthe jury to put themselves in Mr Crump's shoes. Steps 3 and 4 in the question trailaccurately dealt with the issues raised by those submissions. As the act of penetrationis an ongoing act, once the jury found that Ms B either did not consent initially orsubsequently withdrew consent, the Judge's directions and question trail accuratelyand sufficiently identified the remaining issues the jury had to determine. The jurywere directed to be sure that he knew she was not consenting to the penetration.They were also directed to be sure that he did not believe on reasonable grounds thatMs B was consenting to the penetration.26[67] In R v McDonald, a critical point was the proof that the appellant no longer hada continuing belief in consent given the withdrawal of consent by the complainantduring the act of intercourse.27 The Court considered that, when the summing up wasread as a whole, there was no substance to the criticism the Judge had failed toadequately direct on consent, withdrawal of consent and belief in consent onreasonable grounds. The summing up gave a clear direction on withdrawal of consentand, with reference to the defence case, elucidation of the legal test in relation to thefactual arguments as advanced by defence counsel.28 Further, the Court notedthe Judge had correctly told the jury the Crown had to prove the appellant did notbelieve in consent on reasonable grounds. The Court considered the directionsadequate. There was no suggestion that further embellishments were required.29[68] In the present case the Judge covered the legal elements correctly in thequestion trail. Further, in my judgment the Judge also dealt adequately, albeit briefly,with the issues in his summing up:[23] Now, if we turn to page 5. At step 3, you would ask yourselves thequestion, "Are you sure that [Mr Crump] knew that [Ms B] was not consentingto the penetration." What is important here is what was [Mr Crump's]subjective belief. You need to consider this question looking at all thecircumstances from his point of view. If your answer is yes, then you find thedefendant guilty of charge 1. If your answer is no, you go to step 4.[24] At Step 4 if you ask the question, "Are you sure that [Mr Crump] didnot believe on reasonable grounds that [Ms B] was consenting to thepenetration.[25] Now for reasonable grounds, you need to consider whethera reasonable person in the defendant's shoes would think the complainant wasconsenting. That is concerned with the belief of a reasonable person placed inthe defendant's position. This is an objective test looking at the circumstancesand the point of view of a reasonable person.26 Ahsin v R, above n 9, involved a number of defendants and an allegation of party liability. TheCourt's comments at [161]–[163] regarding linking the legal issues and the evidence were madein that context.27 McDonald, above n 8.28 At [16].29 At [17].And then later in summarising the defence case:[42] With respect to the rape charge, the defence submit that you have tolook at the context of what went on at the exact time that is relevant. Theysay the evidence indicates that [Ms B] initiated the cuddling. She performedoral sex on him for [around] 10 minutes and then rolled over saying, "Let's dothis." The defendant says that it was only after sexual intercourse was wellunderway that [Ms B] said "no".[43] [Ms B] accepted in evidence that she had on previous occasions said,"Wait," and "Hold on," when she wanted to change sexual positions duringintercourse. We also heard that at some stage during their sexual conduct[Ms B] said "yes", but we do not know at what point that was said.[44] Given all that context, the defence submit that at the time [Ms B] saidno the defendant was confused about her meaning. She had never said "no"before during sex and on this occasion it was sexual conduct that she hadinitiated and participated in.[45] The defence submit that [Mr Crump] made a mistake at that time butit was not a mistake for which you should be held criminally liable over. Hisstate of mind was evidenced by him saying shortly afterwards that he had notraped her as that was his belief.[69] I do not consider that a direction such as discussed in BC (CA44/2013) v R that"we expect juries to approach the question of delay in a realistic way" (in the contextof withdrawal of consent) is appropriate.30 Such a direction has the potential toundermine the effect of the decision in Kaitamaki. Further, in this case, Mr Crumpwas not suggesting he was almost finished when Ms B said "no". His case was he wasconfused about whether she had consented or not. In his closing address, defencecounsel conceded that Mr Crump accepted he had kept going after Ms B said no.[70] One issue I do have is the way the Judge dealt with the jury question aboutinability to reach a verdict by going immediately to a combined Papadopoulos andmajority verdict direction. It would have been preferable if the Judge had followedthe approach set out by the Supreme Court in Hastie v R.31 But given that directionwas given in response to a question at 2.55 pm and the jury continued to deliberate,then asked a further question at 3.45 pm before delivering unanimous verdicts at4.55 pm, I do not consider it to have caused any issue for the jury. Further, there wasno objection by counsel to the direction at the time.30 BC (CA44/2013) v R, above n 8, at [22].31 Hastie v R, above n 21.[71] I consider the request from the jury at 3.45 pm: "Can a precise definition ofrape be provided" likely reflected they were grappling with the understandable concernhow initially consensual penetration could become rape. The Judge could have givena Kaitamaki direction at that time, but that would have focused the jury solely on theissue of the withdrawal of consent. By referring the jury back to the question trail heemphasised that the jury had to be satisfied as to each of the elements of the offence,including Mr Crump's belief in Ms B's consent. No miscarriage can arise fromthe jury following that question trail and applying it to the evidence.[72] Finally, as noted by the majority, the Judge also gave a tripartite direction.The direction obviously applied to Mr Crump's evidence on all charges. I do notconsider it to have been necessary to tie the direction to any particular charges.[73] I agree with the majority that there was nothing in the failure to direct on theissue of consent reluctantly given. That was not the issue here.[74] For those reasons I consider the Judge's directions on the relevant elements ofthe offence were both accurate and sufficient. Like Kós P, I am satisfied that the jurycould have and should have been sure that the defendant continued with the penetrationeither knowing Ms B was no longer consenting, or that the defendant continuedpenetration when a reasonable person would not believe Ms B was still consenting.I consider the judge's directions were applicable to both circumstances. I woulddismiss the appeal against conviction.[75] In my judgment, the appropriate response to the particular and unusualcircumstances of this offending lies in the sentence appeal. I agree with the President'sjudgment on the sentence appeal.KÓS PTable of ContentsPara NoMisdirection?Miscarriage?SentenceSentencing rape: R v AMThe appropriate sentence in this case[77][79][88][91][102]ResultPostscript[111][114][76] The difficulty of this appeal is demonstrated by the divergence of view withinthe panel. Mallon J considers there has been misdirection, a miscarriage of justice anda manifestly excessive sentence. Venning J finds only a manifestly excessive sentence.I find that there was misdirection but no miscarriage, and a manifestly excessivesentence. Only on sentence are we all in agreement.Misdirection?[77] I am in agreement with the reasoning of Mallon J at [27]–[48] and [53] and[54] above. Those paragraphs express our joint opinion.[78] I add only that I gain no particular assistance in this respect from the 1995decision of this Court in Everson v R.32 It is correct that that appeal also involved analternative, withdrawn consent narrative. But the decision turns not on whether thedirection given was inadequate, but on whether a miscarriage of justice arose. Thereit did not, because there was ample evidence of the appellant continuing to penetratethe complainant after appreciating consent had been withdrawn.Miscarriage?[79] The Judge's omission to give directions along the lines indicated in [32] above,particularly in the face of the inarticulate jury question as to the definition of rape —demonstrating a significant problem in understanding the directions which wasunlikely to be resolved simply by repeating them — was an error. The issue then iswhether it created a real risk that the outcome of the trial was affected.33[80] As the Supreme Court observed recently in Misa v R:34 the question is whether the error, irregularity, or occurrence in or in relationto or affecting this trial has created a real risk the outcome was affected. That,in turn, requires consideration of whether there is a reasonable possibilityanother verdict would have been reached.32 Everson v R, above n 13.33 Criminal Procedure Act, s 232(4)(a).34 Misa v R [2019] NZSC 134 at [48].In the context of this case, the question is whether there is a reasonable possibility ajury directed in the terms set out at [32] would have delivered a verdict of acquittal.35Two points are fundamental to answering that question.[81] First, this is not a trial in which evidence has been excluded, or admitted, thatmay have affected the outcome, where the effect of that evidence on a jury is difficultto assess. Rather, the evidence is the evidence, and it would have been no differenthad directions to the jury at the conclusion of the trial differed.[82] Secondly, for reasons similar to those expressed by Venning J, I considerMr Crump convicted himself by his own police statement and evidence at trial.That is, I consider that had directions been given in terms set out at [32], aduly-directed jury would have been bound to convict.[83] In the statement made at the Whangārei police station on 9 January 2018 heacknowledged that "halfway through" Ms B said "Oh, I don't want it" or "Oh, nah,stop, I don't wanna do it anymore", and that after that "I carried on for a bit",continuing to have sex but finishing "not long after that".[84] In evidence in chief at trial in the District Court at Whangārei on 22 August2019 Mr Crump enlarged on what occurred in the passage cited by Venning J at [64]above. In essence:(a) he confirmed that "halfway through" having sex Ms B said, "Oh no,I don't want this no more";(b) a short discussion ensued in which he expressed surprise at this turn ofevents;(c) he continued to have sex with Ms B after that (i.e. to penetrate her);(d) "she said no again";35 At [46].(e) he did not stop, because "it wasn't registering at the time that she, shedidn't want this because this was new to me. She always, we alwayshad sex on occasions";(f) "she continued to say no about four times";36 and(g) "not long after that it finished and we stopped".[85] Under cross-examination Mr Crump gave the evidence cited by Venning J at[65]. As the further passage of cross-examination cited by Mallon J at [18] indicates,Mr Crump accepted that he felt entitled to continue to have sex with Ms B because itwas she who had initiated sexual activity with him.[86] The burden of the whole of his evidence is this: first, Mr Crump heard Ms Bsay she did not want to continue to have sex with him, and he appreciated that signifiedsomething requiring inquiry. Secondly, after he continued to have sex (that is,penetrate Ms B) he heard her say no at least three more times. Thirdly, despite thatfact he continued to penetrate Ms B, and finished "not long after that".[87] The (at least) double sequence of denial by Ms B, and Mr Crump's awarenessof that sequence, is fundamental to his culpability. It could not be put to one side by aduly-directed jury. The jury could, and should, be sure that the defendant continuedwith the penetration either knowing Ms B was no longer consenting, or that thedefendant continued penetration when a reasonable person would not believe Ms Bwas still consenting. I find no reasonable possibility therefore that a duly-directed jurywould have entered a verdict of acquittal in the face of that evidence. In thatfundamental respect I part company with the judgment of Mallon J.36 It is possible that Mr Crump's count is cumulative, and includes the two earlier instances of"I don't want this no more" and "no".Sentence[88] The Judge sentenced Mr Crump on the basis that he had continued to penetrateMs B well after she had told him she was not consenting, and despite her repeatedprotests. The Judge observed:37You were in a toxic relationship that both of you should have shown the senseto leave. The psychological report provides an explanation as to why youfound taking the step to leave so difficult. It also helps explain your behaviourwhich is, otherwise, inexplicable as in every other way, you appear to be agood person with a positive future.[89] The Judge held the offending to fall within band one of this Court's guidelinejudgment in R v AM (CA27/2009).38 However the Judge in fact — and correctly in ourview — then went on to treat the offending as if it fell below band one. The startingpoint adopted was three years and 10 months' imprisonment (whereas band one beginsat six years' imprisonment). The Judge uplifted the sentence by five months for thecharges of physical violence and endangering transport to which Mr Crump hadpleaded guilty.39 He continued:40[24] I then look at the mitigating factors. You are a person of goodcharacter and you have not offended before. I am also of the view you are aperson who can serve your sentence and re-join the community and not offendin the future. For that factor, I reduce your sentence by six months. Yourremorse and insight into your offending are both real and genuine and I reduceyour sentence by a further six months.[25] For the matters raised in the psychological report, which I will not gointo in open Court, I also reduce your sentence by a further six months totwo years and nine months.It is sufficient to observe that the psychological report evidenced post-traumatic stressdisorder as the result of a bashing meted out to Mr Crump some years earlier andmoderately severe depression. It also evidenced his now being in a new and healthyrelationship with a young woman in Australia. Letters in support from that woman,her family and friends are to the same effect.37 Sentencing notes, above n 2, at [19].38 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.39 See above at [8].40 Sentencing notes, above n 2.[90] The sentence for the rape offending was, therefore, two years and nine months'imprisonment.Sentencing rape: R v AM[91] All acts of rape involve the unlawful denial of the victim's autonomy, and theviolation of her person. Every rape case is serious. To compare cases of rape, and tocontrast degrees of seriousness, is in those terms invidious. But it cannot be the casethat there is simply one penalty for rape. Invidious as it may be, comparison isrequired. Some cases will command a very stern sentence; others may justify a moremerciful response. This case is one of the latter category, for reasons we will explain.[92] In R v AM this Court set out a series of culpability assessment factors to assessthe seriousness of offending in cases of sexual violation (whether by rape or byunlawful sexual connection). Nine of those factors aggravate the seriousness ofoffending:41 (1) planning and premeditation (as opposed to impulsive violation),42(2) violence, detention and home invasion, (3) vulnerability of the victim, (4) harm tothe victim, (5) involvement of multiple offenders, (6) scale of offending, (7) breach oftrust, (8) hate crime, and (9) degree of violation. Two culpability assessment factorsmitigate the seriousness of offending: (10) a mistaken but unreasonable belief by theoffender that the victim consented, and (11) consensual sexual activity between thevictim and the offender immediately prior to the offending. We will return shortly tothe mitigatory considerations. Judges are required to assess the scale of the offending,and the degree of violation involved. Separate sets of bands are then established forsexual violation by rape, and sexual violation by unlawful sexual connection.Some instances of sexual violation by unlawful sexual connection are to be dealt withunder the rape bands.[93] As to the first mitigatory consideration, a mistaken but unreasonable belief bythe offender that the victim consented, the Court observed that negligent acts were tobe seen as less serious than deliberate acts. But if the belief was grossly unreasonable,that would not avail the offender. The Court went on to say that there "may, however,41 R v AM (CA27/2009), above n 38, at [37]–[52].42 At [37].be cases where it is plain that the belief, while unreasonable, was genuine and thisfactor may reduce culpability".43[94] The other mitigatory consideration was consensual sexual activity immediatelybefore the offending. The Court noted that this was a "difficult and controversialissue".44 It observed that "[i]ndividuals have the right to choose the level of sexualactivity in which they wish to participate and sexual partners are obliged to respecttheir wishes".45 But prior authority had acknowledged that depending on thecircumstances, culpability may be diminished where there was consensual sexualactivity immediately prior to the offending. Both draft guidelines prepared inanticipation of a New Zealand Sentencing Council,46 and United Kingdom sentencingguidelines, took a similar approach. The Crown opposed the inclusion of this factoras a mitigating feature, primarily on the ground that it undermined the non-consensualnature of the violation, and so reduced seriousness. Counsel assisting had supportedthe prior (and United Kingdom) approach on the basis that there may be correlationwith lack of premeditation. The inclusion of this consideration, which is relevant tothis appeal, remains controversial. Dr Danica McGovern of the University ofOtago Law School has criticised it, saying it undermines the right to say no to anysexual activity at any time.47[95] What can however be said is that prior and proximate consensual sexualactivity may be relevant to other aggravating and mitigating considerations: it may beindicative of (or contributive to) impulsivity, it may conceivably increase vulnerabilityand breach of trust, and it may possibly have a bearing, one way or the other, on extentof harm, degree of violation and whether there was a mistaken but unreasonable beliefby the offender that the victim consented.4843 At [53].44 At [59].45 At [54].46 Under the Sentencing Council Act 2007 (since repealed).47 Danica McGovern "Assessing Offence Seriousness at Sentencing: New Zealand's GuidelineJudgment for Sexual Violation" (2014) 26 NZULR 243 at 270.48 We observe that Dr McGovern is very critical of that consideration also, in part for the samereasons: at 266–267.[96] This Court observed in AM that there may be cases "so unusual that they willrequire a starting point outside the guideline (that is, below the bottom of band one)".49The Court also made the point that the point of guidelines "is not to impose astraitjacket on sentencing judges – quite the reverse".50 In defining rape band one,with a starting point of six years, the Court noted that where none of the aggravatingfactors identified earlier are present, a starting point at the bottom of the band wouldbe appropriate.51[97] The Court then gave a number of examples of cases with starting points at thelower end of the band. It noted that the encounters in those cases were "relatively briefand the degree of violation correspondingly brief".52 There was little violenceinvolved beyond the imposed sexual activity itself. The Court then noted:53We have said that cases may fall outside the bottom of the band because oftheir unusual fact pattern and an illustration of a case in that category is:• R v Greaves:54 V, 17, invited O to her flat and they engaged in sexualintimacies. It was accepted that sexual intercourse was initiallyconsensual. However, V changed her mind during the act and asked Oto stop. He did not stop until the act of sexual intercourse wascompleted.[98] Setting the starting point for band one at six years' imprisonment creates anumber of issues which will have to be considered in a future review of AM. First, asthe preceding paragraph demonstrates, the way in which the AM guideline judgmentis structured means there is actually a band beneath "band one", applying in cases ofthe lowest culpability. This fact is sometimes overlooked – as this appealdemonstrates: the Judge (wrongly) described the offending as falling within band one,and then (appropriately) set a starting point well below the minimum specified for bandone.55 Secondly, a starting point of six years may effectively preclude a non-custodialsentence despite discounts for early guilty plea and remorse. Anecdotal informationcoming to us from Judges in the trial courts suggests a number of defendants who49 R v AM (CA27/2009), above n 38, at [83].50 At [84].51 At [93].52 At [94].53 At [96].54 R v Greaves [1999] 1 Cr App R (S) 319 (CA).55 See above at [89].would otherwise plead guilty, express remorse and atone early for their offending, areinstead electing to take their case to trial. This Court has dealt with only 15 band onecases for both rape and unlawful sexual connection since AM was delivered in 2009.None resulted in a sentence enabling consideration of a sentence of home detention.[99] To date an appropriate case in which to review AM has not presented itself.This is not that case either. The exercise will have to await another day before apermanent or full court, and with a wider array of interest represented. It is howeverappropriate now to emphasise two points.[100] First, as we noted earlier, band one in AM is not in fact the lowest band providedfor in that case. Cases of lower culpability than those exemplified in band one, likethe example given in Greaves, will qualify for a lower starting point.56[101] Secondly, as this Court observed in AM, the guidelines were not to impose astraitjacket on sentencing judges – but "quite the reverse".57 In Zhang v R this Courtobserved that, in applying guideline judgments, sentencing must still achieve justicein individual cases — discretion and flexibility to go well below the bands is retainedwhen, in the particular circumstances, culpability is very low.58 We do not see AM,properly understood, as precluding that at all. Quite the reverse, in fact. As we wenton to say in Orchard v R:59Consistency is not an absolute end; sentencing remains an evaluative exerciseand guideline judgments must not be applied in a mechanistic way.Sentencing outside bands is not forbidden, but must be justified.That case also emphasised the importance of not over-compiling aggravating factors,but rather focusing on the guidance given by the particular examples given in guidelinejudgments.56 See [97] above.57 See [96] above.58 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [10(a)], [10(i)], [48] and [123].59 Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [28].The appropriate sentence in this case[102] The sentencing approach taken by the Judge is described above.60 For theCrown, Ms Fenton did not suggest the approach was aberrant; she supported thesentence imposed. That means there would be an uplift of about five months for theother convictions entered at the start of trial. However, the prior good character andabsence of convictions of Mr Crump were to be allowed for by way of discount, alongwith discounts for genuine remorse and the psychological background circumstances;in all, discounts of about 18 months.[103] The critical question for this Court then is the appropriate starting point for therape conviction that we have upheld. Approaching sentence on the same narrativebasis as the Judge, it must be the case that the offending falls below AM's band one.It involved a brief period between Mr Crump realising that Ms B had (or might have)changed her mind and ceasing penetration. Mr Crump did not complete the act ofintercourse but ceased belatedly after reaching an appreciation that he should notcontinue (and too late to avoid committing the crime of rape). It occurred in the courseof what had started as consensual intercourse. The intercourse was normal for thiscouple. There was no material age disparity (they were both relatively young at, bythis time, 24 and 21 respectively).[104] We do not for a moment overlook what may be the most important factor inany rape case, which is the harm done to the victim. That is aggravating factor (4) —see [92] above — but one which really stands on its own. We have, therefore, lookedwith care at the evidence given by Ms B and at her victim impact statement.The Judge's description of the entire relationship as a toxic one is very much reflectedin that statement and makes it hard to isolate harm relating to the incident of rape.There can be no question that Ms B believed she had been raped by the failure ofMr Crump to respond to her desire to stop (and for him to do so also), and that shecontinues to take that view. Venning J and I find that perception necessarily sustainedon the evidence. The victim impact statement is regretful of the relationship; theevidence in part regretful of the termination of the relationship. That is not an unusualcoincidence in sexual violence cases. Neither identifies enduring effects attributable60 Above at [88]–[89].to the act of rape, as opposed to the relationship as a whole (and perhaps its ending).We are satisfied that the degree of demonstrable enduring harm to the victim does notelevate this offending from the assessment made in the preceding paragraph.[105] As noted above, these circumstances place the case below the example caseused by this Court in AM as below-band one offending. That case was the Englishdecision, R v Greaves.61 There the 17-year-old complainant and 34-year-old appellant(who were not in a relationship) engaged in sexual activity short of intercourse, beforethe appellant began to penetrate the complainant. The complainant then said"No, Steve. This isn't what I want. Stop". The appellant continued to penetratethe complainant. It was accepted that the intercourse was initially consensual, butthe appellant continued when aware the complainant had changed her mind.The appellant was originally sentenced to 42 months' imprisonment. The Court ofAppeal considered the sentencing Judge placed inappropriate weight on the agedisparity between complainant and appellant. The Court stated that:62No real assistance is to be derived from the authorities and in our judgment itis essentially a matter of impression having regard to the circumstances of theoffence and the background of the offender, who had no previous convictionsrelating to sexual activity.The appellant's lack of previous convictions relating to sexual activity meant asentence of 18 months' imprisonment was considered appropriate. The 18-monthsentence imposed in Greaves is an end sentence and not a starting point. The judgmentitself is brief; it does not indicate any starting point and subsequent discounts.The appellant in Greaves pleaded guilty at trial and so would attract a further discountfor that. If a cumulative discount of 40 to 50 per cent were applied, the starting pointwould be around 30 to 36 months' imprisonment.63[106] Two appellate decisions in Australia may also assist. In R v Hennessythe appellant (17 years old) and complainant (15 years old) were in a relationship atthe time of the offending.64 The appellant digitally penetrated the complainant61 R v Greaves, above n 54.62 At 320.63 Reflecting, on the face of the judgment, broadly similar mitigating personal circumstances to thoseof Mr Crump, in addition to a discount for a guilty plea.64 R v Hennessy [2002] QCA 523.consensually, but the complainant told him to stop when it hurt. The appellant thencommenced intercourse with the complainant. She told him that it hurt and to stop buthe told her to relax and continued having sex with her. The complainant tried to pushthe appellant away. After several minutes the appellant stopped having intercoursewith the complainant. The appellant pleaded guilty and was initially sentenced tothree years' imprisonment to be suspended after nine months. On appeal, theSupreme Court of Queensland upheld the sentence of three years but considered itshould be suspended after 11 weeks. The suspension element of the decision isexplicable because of the youth of the offender and complainant.[107] Finally, in McCartney v R the appellant had sexual intercourse withthe complainant without her consent, knowing that she was not consenting.65Both were affected by alcohol. This is not a case of withdrawn consent, but thepenetration was relatively brief and there was no apparent use of force beyond thatpenetration. The sentencing Judge adopted a starting point of three years'imprisonment which was reduced to account for the appellant's guilty plea.The appellant was sentenced to two years and six months. This was upheld on appealwith the New South Wales Court of Appeal noting that it lay "within the lowest echelonof the range of available sentence for this serious offence".66[108] There are no comparable New Zealand appellate decisions.[109] Standing back, as we must do, our assessment remains that, with discounts forpersonal factors, including that Mr Crump was a first-time offender, a non-custodialsentence is demonstrably appropriate, and a sentence of inevitable imprisonmentdemonstrably manifestly excessive. The stigma of conviction for rape is in itself aprofound penalty, which Mr Crump will have to bear for the whole of his life.67The appropriate starting point for this offending was two years and three months'imprisonment, a sentence likely to qualify a genuinely remorseful offender for anon-custodial sentence. To that starting point the five-month uplift for other offendingmust apply, making a sentence before discount of two years and eight months.65 McCartney v R [2009] NSWCCA 244.66 At [25].67 A sentence of imprisonment, even if commuted to home detention, means the offender is noteligible under the Criminal Records (Clean Slate) Act 2004: s 7(1)(b).Discounts proportionate to those allowed below must apply, four months for goodcharacter, four months for remorse and the full six months for Mr Crump'spsychological state.[110] The end sentence, thus calculated, is 18 months' imprisonment.Result[111] The appeal against conviction is dismissed.[112] The appeal against sentence is allowed.[113] The sentence of two years and nine months' imprisonment is quashed, and asentence of 18 months' imprisonment is substituted.Postscript[114] Mr Crump sought name suppression to protect the identity of Ms B.68 Ms Bhas, however, told the police that she does not want Mr Crump's name to besuppressed. In the circumstances there is no basis for name suppression to be granted.Solicitors:Crown Law Office, Wellington for Respondent68 Criminal Procedure Act, s 200(2)(f).