PAHI v R [2021] NZCA 348

PAHI v R [2021] NZCA 348 [29 July 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENITFYING OF ANY PERSON UNDER THE AGE OF 18 YEARS WHOAPPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINALPROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA784/2018[2021] NZCA 348BETWEEN SIDNEY PAHIAppellantAND THE QUEENRespondentHearing: 21 June 2021Court: French, Thomas and Muir JJCounsel: D J More for AppellantB C L Charmley for RespondentJudgment: 29 July 2021 at 9 amJUDGMENT OF THE COURTA We grant leave to file the appeals out of time.B The conviction appeal is dismissed.C The sentence appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Muir J)Introduction[1] Sidney Pahi appeals his conviction following a jury trial on one charge ofsexual violation by unlawful sexual connection1 and one charge of sexual violation byrape.2 He had earlier pleaded guilty to one charge of injuring with intent to injurearising out of a serious assault to the complainant's head which had preceded thesexual offending by approximately one to two hours.3[2] He appeals his convictions on the grounds that:(a) although he provided written instructions to trial counsel that he wouldnot give evidence, he did so under duress and was not given adequateopportunity to exercise his right to do so; and(b) the District Court erred in admitting propensity evidence of previousnon-sexual violent offending towards the complainant.[3] He also appeals his sentence of 10 years' imprisonment on the grounds it ismanifestly excessive.[4] The appeal was filed six months out of time and therefore requires leave.This is not opposed by the Crown given the seriousness of the charges and the fact thatthe Crown has not been prejudiced by the delay. We grant leave accordingly.Background[5] Mr Pahi and the complainant had been in an "on and off" relationship forapproximately nine years. At the time of the offending they were separated and livingapart. They have four children together.[6] On 17 May 2016, Mr Pahi arrived at the complainant's home uninvited forthe stated purpose of seeing the children. When it was time for the children to go tobed the complainant asked him to leave. He refused and an argument resulted.1 Crimes Act 1961, ss 128(1)(b) and 128B: carrying a maximum penalty of 20 years' imprisonment.2 Sections 128(1)(a) and 128B: carrying a maximum penalty of 20 years' imprisonment.3 Section 189(2): carrying a maximum penalty of five years' imprisonment.Both were, at that stage, seated at the dining table. Mr Pahi grabbed the complainant'shead causing her to fall from her chair. He then dragged her several metres down thehallway where he struck her several times to the face with a closed fist resulting inwhat the sentencing Judge described as "significant swelling and deep bruising".4The blows caused the complainant to fall to the ground. Mr Pahi then forced her onto her bed where he applied pressure to her neck to the extent that it became difficultfor her to breathe. In addition to the injuries to her head, there were also injuries toher neck, arms and legs. The severity of the attack is evidenced by the fact that thecomplainant's blood was found on the wall of her home.[7] Following the assault and while Mr Pahi continued to verbally abuse her, thecomplainant told him that she needed to collect her son from basketball training.Mr Pahi drove her to the venue and afterwards they returned to the complainant'shome. At that point the complainant wanted him to leave her house so she could callthe police. However, Mr Pahi followed her inside and started yelling at her again.She said that she was told to sit on a couch and that she complied, fearing that hewould hit her again. Mr Pahi then sat next to her and started touching her knee.She told him to stop. It was obvious to her that he wanted sex. She says she told himshe was not interested and to go home but that he refused, saying that he "need[ed] it".Her evidence was that he endeavoured to pull her pants down, that she had tried topull them back up again but he said "just fucking let me do this and then I'll gohome". He started to perform oral sex on her and subsequently, after some initialdifficulty obtaining an erection, had sexual intercourse with her. The complainant saidthat while doing so, he placed a blanket over her upper body and face.The complainant eventually managed to convince the appellant to leave and called thepolice shortly after midnight.[8] Mr Pahi's defence was that both the oral sex and intercourse were consensualand that both were in the category of "make-up sex". This was strongly denied bythe complainant under cross-examination.[9] Mr Pahi was arrested on 1 June 2016. He declined to give any statement.4 R v Pahi [2018] NZDC 4770 [Sentencing notes] at [3].Procedural history[10] Shortly before his first trial on 26 June 2017, Mr Pahi pleaded guilty to thecharge of injuring with intent to injure. The trial proceeded on the balance of thecharges which at that stage included one of indecent assault.5 At the conclusion ofthe trial the jury found him not guilty on the indecent assault charge but were unableto reach a verdict on the sexual violation charges. His retrial on those charges occurredon 29 January 2018. He was convicted on both sexual violation charges.The conviction appeal[11] Mr Pahi alleges a miscarriage of justice, as defined in s 232(4) of theCriminal Procedure Act 2011. He does so on the grounds previously identified.To succeed he must establish both an error and a real risk that this affected the outcomeof the trial or rendered it unfair or a nullity.6Ground 1: Absence of fully informed election whether or not to give evidenceThe argument[12] Mr Pahi says that he wanted to testify at both trials and did not do so underduress by his counsel Mr Gill and Ms Baker. He says that although on both occasionshe signed written instructions confirming his intention not to give evidence, he did soagainst a threat by senior counsel in the course of the first trial that he would otherwisewithdraw. He says that his will having been "overborne" at his first trial, the samepressure applied (albeit that the alleged threat was not repeated) at his second trial.[13] In his submissions on behalf of Mr Pahi, Mr More does not put the case on thebasis that counsel was in error in their assessment that Mr Pahi should not giveevidence.7 Rather he relies on the fundamental principle that a defendant who has5 The allegation being that Mr Pahi placed his finger in the complainant's anus during the sexualassault.6 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [23]–[24], confirmed by the Supreme Court inHaunui v R [2020] NZSC 153 at [67].7 Mr Pahi was cross-examined in this Court. His tangential approach to straightforward questionsreinforces us in the belief that, to the extent counsel encouraged Mr Pahi not to give evidence, itwas the advice of reasonable counsel in the sense discussed in R v Sungsuwan [2005] NZSC 57,[2006] 1 NZLR 730.been denied the right to make an autonomous election will almost invariably have hadan unfair trial, which in and of itself is a miscarriage of justice. He submits(uncontentiously) that such a right is breached if trial counsel ignores or overrides thedefendant's instructions.The evidence[14] Each of Mr Pahi, Mr Gill and Ms Baker swore affidavits and each wascross-examined in this Court.[15] Mr Pahi's evidence is that at the conclusion of the Crown case in his first trialhe indicated to Mr Gill and Ms Baker that he wanted to give evidence and that therewas a subsequent argument in the Court holding cells when Mr Gill told him "[i]f yougive evidence you're going to fuck it up". He says that he responded, "[h]ow I [sic]can I fuck it up if I tell the truth and stick to the truth", at which point Mr Gill said hewas "too passionate and look how I was talking". He said that Ms Baker had alreadyprepared a letter of instruction confirming that he would not give evidence and thatMr Gill said that if he was not prepared to sign the letter "I may as well get myselfanother lawyer", that he and Ms Baker had "been in the game between them for60 years" and that "they knew what was best for me". He says that on that basis hesigned the letter of instruction against his will.[16] In respect of the second trial, he says that it was clear to him that his counselcontinued to be opposed to his giving evidence and that he signed the relevantacknowledgment because he was "overborne" and "thought I had no choice".[17] In cross-examination he said he was happy not to be convicted at the first trialbut nevertheless sought to change counsel before the retrial in January 2018.This claim was not supported by the documentary record. Although Mr Pahi did writeto the Wellington Legal Aid office seeking a reassignment, this occurred on19 February 2018 after his conviction. The requested reassignment was stated to befor the purposes of an impending appeal.[18] In his lengthy affidavit Mr Gill deposes to having been engaged as areplacement for several previous assignments. He says that, from the outset, thestrategy agreed with Mr Pahi was that the defence would endeavour to undermine theevidence of the complainant with a view to establishing "reasonable doubt that itwasn't consensual make-up sex after the violence, bearing in mind the significant gapbetween the violence and the sex". He says he explicitly told Mr Pahi about his rightto give or call evidence but that it was never suggested that he would do so "becausehe knew and agreed that he would leave the defence strategy to be one ofcross-examination of the complainant".[19] He noted that, although in initial discussions Mr Pahi presented as "paranoid"and refused to disclose what had occurred on the evening of 17 May because hethought defence counsel would pass it on to police, he ultimately prepared, at counsel'srequest, a 24-page narrative of the relevant background and circumstances. Mr Gilland Ms Baker formed the view that much of this was irrelevant and inadmissible(a conclusion with which we agree having reviewed the narrative) albeit that the finalsection contained a detailed and useful chronology of the events which unfolded on17 May.[20] In reference to the first trial, Mr Gill agrees that at the conclusion of the Crowncase he went to the cells with Ms Baker to "confirm our discussions in prison that hewould not give or call evidence and to have that reduced to writing". He says thatMr Pahi seemed to be in a state of panic at that point, marching up and down the cell,pumping the air with his fist in a highly agitated manner and again raising many of theissues referred to in his brief and which counsel had previously indicated wereirrelevant. These included that the complainant allegedly had sex with his brother andother matters suggestive of the fact that he himself was the real complainant.[21] Mr Gill deposes that he told Mr Pahi he thought the trial had gone well andthat it was "his to lose then if he gave evidence". He says that Mr Pahi wasaggressive, abused him and that regrettably he responded in kind agreeing that he saidsomething to the effect "if you give evidence, you will fuck it up". He denies eversaying that he would withdraw as counsel if Mr Pahi chose to give evidence. He saysthat was never a tenable option in any event.[22] He says that he reiterated it was Mr Pahi's decision to make, explainedthe "cons" as being that Mr Pahi couldn't stop referring to irrelevant and prejudicialmaterial and the 'pros' as being that his evidence could potentially assist the jury inconcluding that the Crown had not proven absence of reasonable belief in consent tothe required standard. He says that because the atmosphere was tense he thought itbest to withdraw and leave Mr Pahi to make his final decision with Ms Baker.[23] Mr Pahi subsequently signed the relevant letter of instruction confirming thathe would not give evidence. The trial then proceeded to final addresses and verdicts.[24] Under cross-examination, Mr Gill said that following the acquittal on theindecent assault charge and with the jury unable to reach a verdict on the sexualviolation charges, Mr Pahi was a "happy man" and that this contentment with thedefence strategy continued through to the second trial. He said that at no stage didMr Pahi say that he regretted his decision not to give evidence.[25] In respect of the second trial, Mr Gill deposes that there was no discussionabout changing the defence strategy, that Mr Pahi was not abusive as he had previouslybeen, was "quite happy to sign the letter of instruction not to give evidence" and thatthere was "a lot of back slapping after the closing address because he thought the trialhad gone well". He said that at no point during the second trial did Mr Pahi indicatehe was unhappy with or wanted to change the defence strategy and that he was "happyfor that process to continue again i.e. that the complainant was cross-examined andthat he was not going to give evidence".[26] In cross-examination he reiterated that from an early stage in Mr Pahi'srepresentation he formed the view that Mr Pahi would be unable to "hold it together"and focus on admissible evidence, that he consistently advised against Mr Pahi givingevidence but that he nevertheless always made it clear that it was Mr Pahi's ultimatechoice and appraised him of the potential "pros" and "cons" of doing so.[27] This account is substantially corroborated by Ms Baker. She says that soonafter she took the assignment Mr Pahi advised he may wish to call evidence andidentified, through his sister, around 15 potential witnesses. However, uponinvestigation their evidence was found to be neither relevant nor admissible and thatcourse was abandoned. As part of that discussion she says that Mr Pahi was told hehad the right to himself give evidence. She says, however, that the strategy ultimatelyagreed was to cross-examine the complainant in relation to her narrative. In her ownwords:This had been a continuous discussion throughout our dealings with Mr Pahiand the clear understanding was that the trial would be run on the basis hewould not be giving evidence.[28] She agrees that there was a "heated" exchange between Mr Gill and Mr Pahiat the end of the Crown case during the first trial. She says that Mr Pahi startedrevisiting matters in his written brief which were neither admissible nor relevant andwhich were against his interest and that Mr Gill expressed in very direct terms whathe thought would be the consequences of Mr Pahi giving evidence.[29] In cross-examination she said the heated exchange was not about givingevidence as such, it was about Mr Pahi's renewed focus on irrelevancies.She considered Mr Gill direct but not overbearing but acknowledged the situation wassufficiently tense that she agreed with his decision to leave the room so she couldcontinue the discussion with Mr Pahi alone. She could not recall Mr Gill eversuggesting that Mr Pahi could "get himself another lawyer".[30] In her affidavit she says that after Mr Gill left she continued to have adiscussion with Mr Pahi "on reasonable terms" reiterating that it was her and Mr Gill'sadvice that he should not give evidence but it was always his decision. She says herconcerns centred on the fact that "he would have not made a good impression with thejury due to his fundamental belief that he was the [complainant]". At the conclusionof that discussion Mr Pahi signed the relevant acknowledgment.[31] She says that between the first and second trials Mr Pahi did not raise anyconcerns "at all" and that her understanding of the position was that counsel wouldadopt the same defence strategy which had proved (comparatively) successful at thefirst trial. She says that following the closing address by Mr Gill at the second trialMr Pahi was very grateful and complimentary about the way the case had been run.She referred to a note written by him stating that "I can't tell yous [sic] how much Iappreciate both of your beautiful work done today." This note was annexed toMr Pahi's affidavit and is undated.[32] Mr Pahi says that he thought he gave the note to Mr Gill immediately beforehe addressed the jury at the first trial. This seems unlikely in view of the discussionwhich had just occurred in the cells. Ms Baker says that although she cannot be surewhen the letter was written, she believes it was towards the end of the second trial.In our view that is the more likely scenario.[33] In cross-examination it was put to Ms Baker that because Mr Pahi had notgiven an evidential video interview there was a premium on his giving evidence toestablish the narrative in respect of reasonable belief and consent. Ms Baker did notagree. She pointed out that both the complainant and her daughter had been veryeffectively cross-examined at both trials. In particular, although denying she hadparticipated in "make-up" sex on 17 May 2016, the complainant admitted undercross-examination that, following prior assaults on her by Mr Pahi, she consented todo so.Discussion[34] We do not consider Mr Pahi's will was overborne during the course of the firsttrial. Clearly he had something of a "speed wobble". Clearly also Mr Gill's advice tohim was expressed in direct and somewhat unprofessional language but we are notoverly critical of him on that account. Mr Pahi was agitated and abusive at the time.Mr Gill's advice about "fuck[ing] it up" put the position clearly and unequivocally —possibly even in the only way which was likely to have the necessary impact. We haveno doubt that (expressed in a more professional way) it was advice that a reasonablecounsel would give, particularly in the context of Mr Pahi's attempt to revisit irrelevantand inadmissible issues. Counsel's conclusion that Mr Pahi's tendency to identifyhimself as a complainant would not play well with the jury was the correct call,especially having regard to the severity of the injuries he had inflicted onthe complainant. Mr More does not in fact contend otherwise.[35] We do not accept that Mr Gill threatened to withdraw as counsel if Mr Pahigave evidence. We consider Mr Gill and Ms Baker's recollections in this respect morereliable than those of Mr Pahi, particularly given his tendency to obfuscate whencross-examined in this Court. Nor, on the basis of his oral evidence, do we considerhim a likely candidate to have been "overborne" by his counsel. Mr Gill consideredany suggestion Mr Pahi was scared of him to be "nonsense". We tend to agree.[36] However, more significant than anything that transpired during the first trial isthe fact that the strategy which was adopted was comparatively successful.Despite what we assess to be a strong Crown case, it resulted in a not guilty verdict onone charge and a hung jury on the others. We consider it far more likely that Mr Pahi'sacquiescence (as he explains the position) in not giving evidence at the second trialwas a product of this comparative success rather than any "overborne" will or beliefthat he "had no choice". We are satisfied that he fully understood his options and thecomparative advantages and disadvantages of each and that his written instructionsthat he would not be giving evidence at his second trial reflected his confidence at thatpoint that counsel's advice had been correct from the outset.[37] We agree with the point made by Ms Baker that although Mr Pahi had not givena police interview this was not a case where, absent evidence from him, there was nodefence. The complainant had accepted that on previous occasions she had consentedto make-up sex, and there were text messages between the complainant and Mr Pahiafter the event which made reference to the assault but not the sexual violations.At both the first and second trials counsel cross-examined effectively on both issues.[38] Nor do we accept Mr More's criticism of the fact that counsel did not preparea brief of evidence for Mr Pahi based on those portions of his own statement whichwere relevant and admissible. Or that, by failing to do so, counsel left Mr Pahi in aposition where he effectively had no option other than not to give evidence. Failureto prepare a brief is not, of itself, an error that is necessarily fatal to a defendantreceiving a fair trial.8 Each case turns on its own facts. Mr Pahi had provided a fullnarrative of the events on 17 May. It was intelligently written and highly detailed.Competent trial counsel could easily and quickly have adapted it for the purposes ofevidence-in-chief had Mr Pahi's instructions required it. We agree with Mr Gill and8 Weston v R [2019] NZCA 541 at [35].Ms Baker that in terms of the balance of the brief it was largely irrelevant andinadmissible.[39] We are satisfied that throughout both trials Mr Pahi was fully informed by hiscounsel about his option to give evidence, that they advised he should not, that heaccepted such advice, gave written instructions accordingly and that his will was notoverborne in the process.[40] Accordingly, we dismiss the first ground of appeal.Ground 2: Inappropriate admission of propensity evidenceProcedural history[41] Prior to the first trial the Crown applied to admit propensity evidence relatingto four previous convictions for violent offending against the same complainant whofeatured in the index charges.9 These convictions arose out of events on 17 April 2011,24 July 2013 and 20 July 2014 respectively. On the first occasion, the complainantarrived at Mr Pahi's home to pick up their son who had stayed overnight with him.When the complainant went into the address to collect their son and his belongings,Mr Pahi grabbed the complainant by her throat, took her to a bedroom kneeing her inthe ribs and punching her in the mouth. He was convicted of male assaults female.On the second occasion, Mr Pahi arrived at the complainant's home uninvited andrefused to leave when asked to do so. When she indicated that she no longer wantedto be in a relationship with him he ripped a necklace from her neck and then squeezedher windpipe for about 10 seconds. He was convicted of male assaults female. On thethird occasion, Mr Pahi complained that the complainant had taken $20 from hiswallet. When she denied this he threatened to assault her with a baseball bat, punchedher about the head multiple times, dragged her to her bed by her hair and stomped onher ribs. He was convicted of injuring with intent to injure and threatening behaviour.[42] The defence opposed admission of the evidence. In a pre-trial ruling,Judge Butler held that the propensity evidence was highly probative in terms of the9 Criminal Procedure Act 2011, s 101(2).injury with intent to injure charge (to which Mr Pahi had not at that stage pleadedguilty)10 and, that in terms of Mr Pahi's alleged sexual offending, the probative valueof the evidence remained live with the result that "the issues at trial need to be furtherdeveloped in relation to the alleged sexual offending".11 He noted that "[i]f consent isthe issue, then the argument for admitting the propensity evidence is stronger."12[43] As indicated, Mr Pahi pleaded guilty to injuring with intent to injure shortlybefore the first trial. As a result a second challenge was made to admissibility of thepropensity evidence on the grounds that it was not probative in the context of theremaining trial issues.[44] In a ruling made part way through the trial, at which point he was able to assessits probative value, Judge Barry ruled the 2013 and 2014 convictions admissible.13He said the principal trial issue was whether what occurred was "make-up sex" andthat the prior history of violence was highly relevant to the questions of consent andreasonable belief therein.14 The Judge ruled the 2011 evidence inadmissible on thebasis that it "simply adds bulk without any further probative value" and that itsaddition may start to broach the point where the jury could give disproportionateweight to the other acts.15[45] At the second trial, the propensity evidence was admitted by way of an agreedstatement of facts.16 No ruling was therefore made. Against this background thechallenge to admission of the evidence has the flavour of a further attack on counselcompetence, although the argument was not run in that way. Mr More submits that atthe second trial Judge Hobbs was not bound by Judge Barry's ruling and that defencecounsel could have required a new application. If that produced the same result thenit could have been appealed. He invited the Court to consider the issue as if Mr Pahihad made an application to appeal Judge Barry's ruling out of time.10 R v Pahi [2017] NZDC 1961 at [19].11 At [24].12 At [24].13 R v Pahi [2017] NZDC 14011.14 At [11].15 At [15].16 Evidence Act 2006, s 9.[46] We intend to deal with the substance of the objection rather than be troubledfurther by these peripheral issues.The appellant's case[47] Mr More submits that it is hard to see how previous convictions for violence,without more, could be propensity evidence on subsequent charges of sexual violationand that if the suggested basis for admission is that it goes to the complainant's consentthen that evidence "stands on its own" and that "[a]ny previous convictions forviolence unconnected to allegations of subsequent non-consensual sex are irrelevantand extremely prejudicial."Discussion[48] We do not accept Mr Pahi's argument. As Ms Charmley points out, "[I]n thecontext of evidence about violence in a family relationship, the similarities betweenthe propensity and index offending — and, as a corollary, concepts of coincidence andlinkage — are less significant than what the evidence says about the dynamics of therelationship". Accordingly, "[i]t will not be necessary to demonstrate close match orunusual act fact patterns in the context of same [complainant] offending."17 As such,many of the factors in s 43 of the Evidence Act 2006 will be of limited assistance andthe analysis tends to "mirror that which would occur under ss 7 and 8 of the Act".18[49] This Court has also recognised the probative value that evidence of previousnon-sexual violence may have in the context of later allegations of sexual offending.In Perkins v R, for example, this Court said:19[26] We accept the Crown submission that it was important to the Crowncase to show that there was a general atmosphere of violence to all those inthe household emanating from Mr Perkins. It set the background for whatthe Crown claimed was the unwilling acquiescence to sex on the part of thecomplainant, who on past experience knew that if she declined she would beassaulted.17 Campbell-Joyce v R [2016] NZCA 192 at [26].18 H (CA227/2018) v R [2018] NZCA 266 at [11].19 Perkins v R [2011] NZCA 665.[50] In our view the history of Mr Pahi's controlling behaviour towardsthe complainant — including his use of violence — was highly probative both in termsof whether she consented to the sexual conduct and whether Mr Pahi could havereasonably believed she was consenting. It had particular implications for hercredibility when she asserted that she considered a further "hiding" likely if she tookany more active steps than she did to resist his sexual advances.[51] We also regard the allegation of prejudice as artificial in the context of adefence case substantially based on the proposition that when, on previous occasions,Mr Pahi had been physically violent to the complainant (including inferentially theoccasions identified in the propensity evidence), the complainant and Mr Pahi had"make-up consensual sex". That was the foundation for the proposition that exactlythe same thing occurred on 17 May 2016. The following extract from thecross-examination of the complainant is instructive:Q. There was no rape, that's why you didn't complain?A. Yes there was rape.Q. You just had consensual sex the way you guys always do?A. No.Q. And in fact on your tape you specifically say that. "Make up sex. That'swhat he does." And that was at page 9 of your video interview, to get itexact I suppose. Line 10, page 9. "He wanted to have sex. He wantedto have make up sex. Pretty much what he does."A. Correct.Q. "Pretty much what he does?"A. Yes in the past he has given me hidings before and he's had make upsex.Q. Hey, there we are. It's exactly the same –A. This time was different.[52] In fact therefore what Mr More identified as "extremely prejudicial" evidencewas an essential building block in the defence case.[53] We therefore dismiss the second ground of the conviction appeal.The sentence appealThe District Court's approach[54] Mr Pahi was sentenced on 14 March 2018 in respect of both the injuring withintent to injure charge and the sexual violation charges.20[55] Judge Hobbs identified the sexual violation charges as the most serious andthat a complicating feature of the sentencing was that Mr Pahi's violent assault onthe complainant had preceded the sexual assaults "at least by an hour or two".21He said that because the assault had not occurred during the sexual violation it couldpotentially be dealt with as separate and distinct offending but ultimately agreed withthe Crown that the best approach was to consider it as an aggravating feature of thesexual violence "because it was closely linked with the events on the night inquestion".22[56] In addition to the violence the Judge identified other aggravating featuresincluding the breach of trust implicit within relationship offending, the scale of theoffending (involving both oral and vaginal sex) and the harm to the complainant.23[57] He said that if the violence earlier in the evening was not taken into account hewould have considered that the offending fell at the upper end of band one in thisCourt's guideline judgment of R v AM (CA27/2009).24 However, because the injurysustained by the complainant made her vulnerable and frightened when the sexualviolence occurred and it was obvious from her evidence at trial that she was concernedabout a renewed assault if she further resisted, there was a nexus between both tranchesof offending. As such he identified the violence as an aggravating feature elevating20 Sentencing notes, above n 4.21 At [6].22 At [6].23 At [7].24 At [8], citing R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [90]. Band oneattracts sentences of between six and eight years imprisonment.the offending into band two in R v AM (CA27/2009). He noted this was accepted byMr Pahi's counsel (at that stage still Mr Gill).25[58] He further noted that Mr Pahi appeared to have little insight into his offendingand to take little responsibility for his violent past (thus echoing the concerns of histrial counsel in their assessment of whether it was in his interests to give evidence athis trials).26 He identified an appropriate starting point of 10 years' imprisonment towhich he added a six-month uplift to reflect Mr Pahi's significant history of violence.27He then discounted the sentence to 10 years' imprisonment having regard to Mr Pahi'sguilty plea on the injuring with intent charge. In respect of that charge, he imposed aconcurrent sentence of two years' imprisonment.28The appellant's case[59] Mr More submits that because the sexual violation and injuring with intentcharges were different in kind and because of the period of time that elapsed betweenthem, it was wrong for the Court to consider the assault as an aggravating feature ofthe sexual violence. He submitted that the appropriate sentencing response was toremove the violence as an aggravating feature of the sexual assault and sentence itseparately on a cumulative basis with a totality deduction. He submitted that on thisbasis the sexual violations could appropriately be considered to fall within band oneof R v AM (CA27/2009) because they would then be characterised by one aggravatingfeature only — breach of trust.[60] Assuming the mid-point band one starting point of seven years, Mr Moresubmitted that the sentence was appropriately uplifted by two years for the injuringwith intent charge and six months on account of previous convictions but with totaluplifts reduced to two years on account of the guilty plea. Finally, he submitted, theresulting sentence of nine years should be discounted to reflect totality. Thus heproposed an end sentence of eight years and six months' imprisonment.25 Sentencing notes, above n 4 at [7].26 At [11].27 At [12]. We identify 18 previous convictions in this category.28 At [13]–[14].Discussion[61] We do not consider the District Court to have erred in its sentencing approach.It is in our view artificial to separate the two tranches of offending in the mannersuggested. The assault was serious, resulting in significant facial injuries.The complainant was in significant pain. She feared further assaults if she resisted toany greater extent than she did. To that extent her injuries were operative in terms ofthe further offending.[62] Moreover, even without reference to the earlier violence, we would have beenprepared to find at least two aggravating features justifying a band two categorisation.Mr More accepted, the offending involved a breach of trust having regard to thelengthy relationship between Mr Pahi and his complainant. The complainant was alsoparticularly vulnerable as a result of the severity of the earlier assault and there werepotentially degrading features to the sexual offending in that, as the District CourtJudge records, Mr Pahi placed a blanket over the complainant's upper body and facewhile he engaged in sexual intercourse with her.29[63] We also consider there to be an incorrect premise in Mr More's alternativesentencing structure — namely that if sentenced cumulatively, the injuring with intentto injure charge would only have attracted a sentence of two years, as identified in theJudge's concurrent methodology.[64] Having regard to the severity of the injuries inflicted on the complainant wewould have considered a starting point approaching three years more appropriate ifsentenced on a cumulative basis.30 Allowing for a six month uplift on account ofprevious offending (approximately 16 per cent) and a 20 per cent discount for a guiltyplea (generous given the strength of the Crown case and proximity of plea to trial),29 At [5].30 In terms of the bands identified by this Court in Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39at [38] for offending under ss 189(2), 188(2) and 191(2) of the Crimes Act 1961, we would placethe offending towards the lower end of band three having particular regard to the severity of theviolence involved, the serious injury caused to the complainant (including that two years later shestill suffered issues with her memory and significant psychological distress), the fact that theoffending involved attacks to the head, the vulnerability of the complainant and the fact that itoccurred within the complainant's home. The latter factor was specifically identified as anaggravating factor by this Court in Solicitor-General v Hutchison [2018] NZCA 162, [2018] 3NZLR 420 at [26]–[28].this would have resulted in an additional sentence of around two years and ninemonths' imprisonment. Even allowing for Mr More's band one seven year suggestedstarting point for the violation charges (in our opinion too low having regard to theother aggravating factors we have identified) and some totality adjustment,the sentence would, in our view, not have been materially different to that imposed.Result[65] We grant leave to file the appeals out of time.[66] We dismiss the conviction appeal.[67] We dismiss the sentence appeal.Solicitors:Crown Law Office, Wellington for Respondent