T (CA370/2018) v R [2019] NZCA 13

T (CA370/2018) v R [2019] NZCA 13 [20 February 2019]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF WITNESS K PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA370/2018[2019] NZCA 13BETWEEN T (CA370/2018)AppellantAND THE QUEENRespondentHearing: 27 November 2018Court: Winkelmann, Ellis and Whata JJCounsel: K J Beaton for AppellantJEL Carruthers for RespondentJudgment: 20 February 2019 at 11.00 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is allowed. The sentences are quashed.C Sentences are substituted as set out at [64]–[65] of this judgment. Leave isgranted for T to apply to the District Court for home detention.D Order prohibiting publication of the name, address occupation or identifyingparticulars of the appellant pursuant to s 200 of the Criminal Procedure Act2011.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] T appeals against his convictions on four charges of sexual and violentoffending, entered after a jury trial in the District Court at Timaru before her HonourJudge Maze in March 2018. He was found not guilty on two other charges of sexualoffending. He had pleaded guilty to one charge of threatening to kill on the firstmorning of trial.[2] On 21 June 2018, he was sentenced to three and a half years' imprisonment.1[3] The complainant in relation to all charges was T's whāngai niece(and biological cousin), A, who was aged between 13 and 15 at the relevant time.T himself was aged between 19 and 20. T and the complainant were living in the samehouse at the time of the events in question.[4] The thrust of Mr T's conviction appeal involves the proposition that the jury'smix of guilty and not guilty verdicts were inconsistent and that the guilty verdicts wereotherwise unreasonable. T also appeals against his sentence.[5] We begin by saying something about the charges themselves.The threatening to kill charge[6] Notwithstanding T's guilty plea to the threatening to kill charge, for reasonsthat will later become apparent, it is relevant to say something about it here.The summary of facts relating to this charge stated that:On Friday the 18th of March 2016 around 2.20pm the defendant was at hishome address ...1 R v [T] [2018] NZDC 12607 [Sentencing notes].The defendant was made aware from a family member that his niece had madea formal complaint to Police alleging that he had sexually assaulted her.The defendant went outside and contacted the Police using the 111 system andsaid "I need you to come and get me, I am about to kill someone".Police arrived and he was subsequently arrested.[7] It is unclear whether A was in fact in the vicinity at the time the telephone callwas made; T later told police he did not know but assumed she was still at school(the call to police was made shortly before 2.30 pm).[8] The police did, in fact, come and pick T up and he was interviewed (twice)shortly afterwards. The later evidential video interview (EVI), which was played attrial, relates both to the "threat" made during the 111 call and the allegations of sexualoffending made by A, who had been interviewed just the day before. During theinterview he denied any sexual offending against A. The summary of facts record thatwhen T was asked about the 111 "threat":the defendant stated it was his niece he wanted to kill as she had been sayingthings about him. He further stated he probably wouldn't have killed her andwould have just beaten her up.The sexual charges[9] There were three separate alleged incidents which formed the basis of thecharges of sexual offending laid against T.The first incident[10] The first incident was briefly described by A in her EVI. She said that in oraround July 2014, A and T were watching a movie together on T's bed. A said she fellasleep and woke to find T nibbling her ear, rubbing her leg, and squeezing her breast.A also said in her EVI that she didn't "really remember much from that time" and,later in evidence, that she "didn't think anything of it".[11] These allegations formed the basis for the first charge of doing an indecent act(charge one).[12] It seems that as a result of a complaint made by A to a friend and other familymembers, T was asked to leave the home he shared with A and her family.2Police were not at that stage involved.The second incident[13] In approximately August 2015, however, T returned to live with A, her parentsand siblings in a house on A Road. The second and third incidents were alleged to haveoccurred at that house.[14] A's EVI statement about the second incident was that in or around August 2015,T entered A's room while she was having a nap. She woke to find him nibbling andlicking her breasts and penetrating her vagina with his fingers. When she awoke andattempted to protest, T put his other hand over her mouth to stop her screaming.[15] These allegations led to charges of doing an indecent act (charge two) andsexual violation (charge three).The third incident[16] The third incident was said to have occurred shortly before Christmas in 2015when A was doing English homework in her room.3 The adult occupants of the house(including T) had been drinking. A confirmed in her statement that her parents andfive siblings were also at home, in rooms downstairs.[17] A said that T entered her room, pushed her down on the bed, tried to take herclothes off, put his hands down her pants and touched her legs and vagina, put hisfingers inside her vagina (scratching her with his fingernails), tried to get her to lickhis fingers and to hold and suck his penis, and put his penis against her body includingbetween her breasts and against her genitalia. She alleged that during the incident(which she estimated lasted between one to one and a half hours) T slapped her inthe face, yelled at her, punched her in the sides causing bruising, hit her head againstthe wall, and pushed and squeezed her neck and throat leaving scratch marks.2 In his own EVI, T denied that this was why he had left.3 This part of the evidence is slightly odd because A also said it was the school holidays.[18] The third incident allegations resulted in one representative charge of maleassaults female (charge four),4 a charge of doing an indecent act (charge five), and acharge of sexual violation (charge six).The evidence at trialThe first incident[19] As well as the account of the first incident contained in A's EVI:(a) A said under cross-examination that more had happened on thatoccasion and that she hadn't told the full truth to the interviewer.(b) Her friend K gave evidence that, some months after the incident, A hadtold her that she and T had been watching a movie together, that shehad fallen asleep and that she awoke to find T on top of her and that shehad been "raped". K said that A had said nothing about T nibbling herear, rubbing her leg or squeezing her breast.(c) A's mother and sister both gave evidence that (moments after A hadspoken to K) A had told them that T had "undone her buttons" on hertop. Both witnesses said that A had said nothing to them about Tnibbling her ear, rubbing her leg, and squeezing her breast (althoughA's sister said that A had said that T had touched her chest).The second incident[20] Under cross-examination A said that she could no longer remember the secondincident very well, but confirmed that when she awoke, T was already nibbling andlicking her breasts and had his fingers inside her. She said that he covered her mouthto stop her making any noise. She also accepted again that there had been a numberof other family members home (and likely nearby) during the incident and that shehad not told anyone about it.4 Charge four was apparently framed as a representative charge because it covered a number ofphysical assaults said by A to have formed part of the third incident. While this seems to us tobe an inapt and potentially confusing charging practice, nothing presently turns on it.[21] There was no other specific evidence pertaining to the second incident.The third incident[22] Although those parts of A's EVI referred to at [16]–[17] above were consistentwith the specific allegations which formed the basis of the three "third incident"charges, it is fair to say that her evidence was otherwise confusing on this topic. Muchof her account suggested that the "third incident" acts she was describing had occurrednumerous times. This can most conveniently be seen from the tenor of the accountshe gave when she was asked to write down what had happened on a piece of paper.She recorded:First he would come into my room, usually it was around 11.00pm til 11.30pm.Then while I was sitting there he would come over to me and he would spenda few minutes asking me what I was doing. And then usually 10 minutes laterhe would being trying to undress me. Then when I couldn't get him off, hewould take his own clothes off. This took about 20 minutes because I nevergave in and never let him undress me. Now he will have me pinned down andhe will be touching my body and he will be sticking his fingers in me.He would do this for what seems like 10 minutes, then if he wanted to hewould make me touch his penis and play with it. I never wanted to. Then hewould put his fingers in my vagina again and he would do that for a fewminutes again. This all usually took an hour to an hour and a half. After hehas finished with his fingers in my vagina he would take them out and hewould push me off the bed and he would warn me not to say anything toanyone. I was too scared to do anything so I lay there. Sometimes he wouldcome back in and do it again but most of the time it was a one-time thing.[23] Under cross-examination, however, A was clear that there were only threeincidents. There was the following exchange:Q. So [A] I asked you to confirm that, it's your evidence isn't it that therewere three incidents of sexual assault on you by [T]?A. Yeah.Q. And only three, correct?A. Yep.[24] Under cross-examination, A maintained what she had said about the level ofviolence used but denied that any noise would have been heard by others downstairs.She accepted that she had not shown anyone her bruises and scratches. She could notremember or explain some parts of her account including the allegation that she hadpain all over her body, how or why she came to be on top of the appellant as he rubbedhis penis against her, or how long the incident lasted.[25] Evidence relating to the third incident was also called from A's teacher (Y) andguidance counsellor (H) that, in March 2016:(a) A had disclosed to Y that her uncle "does stuff" to her that she did notlike and that it had happened just before Christmas 2015 and hadhappened two times before; and(b) A disclosed to H that:(i) her "Uncle S", who was 26 or 27 had been sexually andphysically abusing her;(ii) it happened "every now and then" and more than twice sinceshe had moved to her current home, the last time being aroundChristmas; and(iii) sometimes there was sexual intercourse.The defence case[26] Consistent with the position taken by T in his EVI, the defence case was thatnothing of a sexual nature had occurred between T and A. In her closing address,Ms Beaton emphasised on the inconsistencies in A's evidence, the implausibility ofher accounts and the general lack of credibility of her evidence.The verdicts[27] The jury acquitted T on charge one (the first incident).[28] In relation to the second incident, the jury convicted T on charge two(licking breasts) but acquitted him on charge three (digital penetration).[29] The jury convicted T on all three charges arising from the third incident.The conviction appeal[30] As noted earlier, the conviction appeal is advanced on the basis that the jury's"not guilty" verdicts on charges one and three, and "guilty" verdicts on the remainingfour charges were inconsistent and unreasonable given the evidence, and indicate anillegitimate compromise or a decision-making process gone awry.Unreasonable and inconsistent verdicts: the law[31] At a general level, in Owen v R the Supreme Court confirmed that a verdict"will be unreasonable if, having regard to all the evidence, the jury could notreasonably have been satisfied to the required standard that the accused was guilty".5The Court endorsed the propositions articulated by this Court in R v Munro; namelythat, when assessing a claim of unreasonableness:6(a) an appellate court is performing a review function, not one ofsubstituting its own view of the evidence;(b) appellate review of the evidence must give appropriate weight to suchadvantages as the jury may have had over the appellate court (of whichthe assessment of the honesty and reliability of the witnesses is a classicexample);(c) the weight to be given to individual pieces of evidence is essentially ajury function;(d) reasonable minds may disagree on matters of fact;(e) findings of facts are for the jury and appellate courts should not lightlyinterfere in this area;5 Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17].6 At [13], citing R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.(f) an appellant who invokes (what is now) s 232(2)(a) of the CriminalProcedure Act 2011 must recognise that the appellate court is notconducting a retrial on the written record;(g) an appellant must articulate clearly and precisely the respect/s in whichthe verdict is said to be unreasonable and why, after making properallowance for the points made above, the verdict should neverthelessbe set aside;(h) where a verdict is based largely on credibility findings it is unlikely tobe overturned unless there is contemporary evidence clearlycontradicting the witness, or in cases of glaring improbability; and7(i) inconsistencies alone are unlikely to reach that standard.8[32] The issues raised by conviction appeals brought specifically on the basis ofallegedly inconsistent verdicts were subsequently addressed in more depth by theSupreme Court in B (SC12/2013) v R.9 The plurality's judgment began its discussionby saying:[66] The purpose of an inconsistent verdict argument is to show that ajury's guilty verdict is unreasonable and should be quashed. It invokess 385(1)(a) of the Crimes Act (see now, ss 232(2)(a) and 240 of theCriminal Procedure Act 2011). As this Court held in R v Owen, a jury's verdict"will be unreasonable if, having regard to all the evidence, the jury could notreasonably have been satisfied to the required standard that the accused wasguilty".(Footnotes omitted.)[33] After noting the conflicting objectives at play, the Court said:10On the one hand, courts seek to uphold the integrity of the jury system. Courts will always be reluctant to conclude that juries have not actedconsistently with their oaths. On the other hand, the courts' concern withdoing justice may be engaged in respect of particular verdicts. Where theydeliver multiple verdicts which are not capable of logical reconciliation, juriesgive some insight into their thought processes. Logically irreconcilable7 As explained by Glazebrook J in R v Patel [2009] NZCA 102 at [27].8 At [27].9 B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261.10 At [67] (footnotes omitted).verdicts may indicate that the jury's thinking has gone awry in somefundamental way: in particular, the jury may have acted on amisunderstanding of the law or reached an illegitimate compromise. In suchcircumstances, a court may feel it necessary to intervene in order to ensurethat justice is done, despite its respect for the jury's function in the criminaljustice process. An obvious difficulty, however, is how a court can determinethe basis for a jury's apparently inconsistent verdicts given that jurydeliberations are protected from outside scrutiny.[34] Next, the Court recorded the following general propositions from the decidedcases:11(a) there is a distinction between cases involving legal inconsistency andthose involving factual inconsistency;(b) factual inconsistency can arise either between verdicts involvingthe same accused or (less often) between verdicts involving differentpersons charged in connection with related events;(c) in relation to factual inconsistency arising from "guilty" and"not guilty" verdicts on multiple charges faced by one defendant,the test is one of "logic and reasonableness";(d) inconsistent verdicts may be held to be unreasonable "whenthe evidence on one count is so wound up with the evidence on the otherthat it is not logically separable";12(e) because there is a reluctance to conclude that that jury verdicts areinconsistent, an appellate court will not usurp the jury's function bysubstituting its view of the facts for that of the jury if there is someevidence to support the verdict said to be inconsistent;(f) but any reasonable explanation for the difference between the twoverdicts "must be found in the evidence properly used";1311 At [68].12 R v Pittiman 2006 SCC 9, [2006] 1 SCR 381 at [8].13 R v O (No 2) [1999] 1 NZLR 326 (CA) at 333.(g) equally, an appellate court "may conclude that the jury took a 'merciful'view of the facts upon one count: a function which has always beenopen to, and often exercised by, juries";14(h) an appellate court will intervene where the different verdicts returnedby a jury represent "an affront to logic and common sense which isunacceptable and strongly suggests a compromise of the performanceof the jury's duty";(i) the obligation to establish inconsistency rests with the personchallenging the conviction; and(j) where inconsistency is established, the court must make suchconsequential orders as the justice of the case requires.[35] Later, the Court addressed the argument made for the appellant that, given thenature of the evidence, there had to be convictions on both counts or on neither —that it was an all or nothing case.15 They said:[83] A similar argument was accepted by the Criminal Division of theEnglish Court of Appeal in R v Dhillon. There the Court observed that it was"notoriously difficult successfully to challenge a jury's verdict on the groundthat inconsistent verdicts have been returned". To succeed there had to bea logical inconsistency in the verdicts which could not be explained by aline of reasoning reasonably available to the jury. In sex cases wheresexual incidents are alleged to have occurred on separate occasions,inconsistency will not arise simply because the jury accepted part ofa complainant's evidence but was not sure about other parts. It may bedifferent, however, where the various offences are "simply different facetsor acts in the course of a single sexual encounter". In those circumstances,the Court said: if the jury is unsure of the complainant's evidence with respect toone count on the grounds that it may be unreliable or lackingcredibility, it is likely to be more difficult than it would be with respectto chronologically separate encounters for a jury to be sure that theevidence on the other counts is reliable and credible.14 MacKenzie v R (1996) 190 CLR 348 at 367.15 As the Court noted, this was, of course, directly contrary to the Judge's instructions to the jury:B (SC12/2013) v R, above n 9, at [82].[84] In Dhillon, as in the present case, several (in that case, five) sexualoffences were alleged to have been committed in the course of a single sexualencounter. The appellant was convicted on two counts and acquitted on three.While no issue was raised by his acquittal on two of the counts, his acquittalon the third raised the question whether the guilty verdicts were logicallyconsistent. The two counts on which he was convicted involved digitalpenetration of the complainant's vagina and sexual assault by touchingthe complainant's breasts. The count on which he was acquitted involvedoral sex. The appellant admitted that the three incidents had occurred but saidthat they were consensual.[85] The Court said that the jury's verdicts could only be explained on thebasis either that:(a) the jury was unsure whether the oral sex had occurred but wassure about the other two acts; or(b) the jury considered that the complainant had consented to theoral sex but not to the other less serious acts; or(c) the jury considered that the appellant had a reasonable beliefthat the complainant consented to the oral sex but not to thetouching of the vagina and breasts.The Court rejected the first possible explanation, on the basis that noreasonable jury could have found that two of the incidents occurred but notthe third. Counsel accepted that the second explanation was untenable.The Court rejected the final explanation. The evidence showed that the actshad occurred at the same time — indeed, it was not clear from the evidencewhether the touching of the breasts had preceded the oral sex or vice versa.Moreover, neither the Judge nor counsel had suggested that the appellantmight have had a reasonable belief in consent in respect of one act and not theother.[86] Accordingly, the Court concluded that the verdicts were inconsistent.That did not necessarily mean that they were unsafe, however, and that theappeal should be allowed. The Court considered the possibility that, on theevidence, the appellant was unjustifiably acquitted of the oral sex chargerather than that he was unjustifiably convicted on the other charges. Whileaccepting that there was some force in that proposition, the Court did notaccept it. Noting that the verdicts were by a majority and had come after sixhours of deliberation, the Court considered that there was a real risk that thejury had reached an illegitimate compromise and quashed the convictions.(Footnotes omitted and emphasis added.)[36] Unlike in R v Dhillon,16 however, the Supreme Court concluded on the facts ofthe case before it that the verdicts there could be factually reconciled and were notinconsistent.1716 R v Dhillon [2010] EWCA Crim 1577, [2011] 2 Cr App R 10.17 B (SC12/2013) v R, above n 9, at [90].Discussion[37] It is quite clear that the Crown case against T was that there had been threediscrete "incidents" of sexual offending. As noted earlier, A said in cross-examinationthat there were (only) three distinct occasions on which the offending had occurred.[38] In her summing up, the Judge gave the jury relatively orthodox directions thatwitnesses can be wholly truthful, partially truthful or wholly untruthful and aboutcredibility and reliability. She also directed the jury to consider each charge, and theevidence for each charge, separately — although it seems that the Judge herself mayhave regarded it as an "all or nothing" case.18 The mix of verdicts delivered, however,demonstrate that the jury did not agree.[39] There can be no doubt that the submission that the jury's verdicts wereinconsistent is at its strongest in relation to the two charges arising from thesecond incident. We acknowledge that charges two and three can fairly be seen as"simply different facets or acts in the course of a single sexual encounter" and thus that itmay be easier to demonstrate that a split of guilty and not guilty verdicts are factuallyinconsistent (and unreasonable).19[40] As summarised above, A's evidence about charges two and three was that sheawoke to find T licking and nibbling her breasts, and with his fingers inside her.She was clear that these acts were not temporally separate. So the question is whetherthe verdicts of "guilty" on charge two and "not guilty" on charge three can be said tobe unreasonable because "the evidence on one count is so wound up with the evidenceon the other that it is not logically separable".20 In other words, is there any reasonableevidential basis upon which the jury could have been sure that one of the"second incident" acts occurred but not the other?[41] It is important to remember that the required focus is on the reasonableness ofT's conviction on charge two rather than his acquittal on charge three. Was there some18 At [23] of her directions she said: "In theory, you could reach different verdicts on each,although, of course, [T] says the same to each of the allegations, 'This did not happen.'"19 R v Dhillon, above n 16, at [42].20 See R v Pittiman, above n 12, at [10].reasonable and logical basis on which (given the acquittal) the conviction can beexplained?[42] We set out the Crown's written submission on that question in full:Being different verdicts in respect of acts said to have been committed by oneperson against another at the same time, they may appear at first glance to besomewhat inconsistent. There is, however, a rational explanation for them,which requires a return to the first incident. The jury may have largelybelieved the complainant in respect of the first incident but still foundthe appellant not guilty... Then, due to the similarities between the first andsecond incident, the jury may have believed the complainant when she said,in relation to the second incident, that she woke to find the appellant nibblingand kissing her breasts. They may have entertained some doubt, however,about her claim that the appellant had also managed to penetrate her with hisfingers while she was asleep.(Footnotes omitted.)[43] The first aspect of this submission appears essentially to be that the jury mayhave considered that the evidence in relation to charge one sufficed (notwithstandingthe acquittal on that charge) to establish a propensity to offend in that way, whichsomehow "tipped the balance" on charge two. We find that an unattractiveproposition; such a reasoning process would, in our view, be illegitimate. There wasno propensity direction.[44] But the second aspect of the Crown submission does not invite suchillegitimate reasoning. There was a potentially logical explanation for the jury's doubtabout the penetration aspect of the second incident.21 On the evidence it was open tothem to think that, although something sexual had occurred between T and A onthe second occasion, the digital penetration was an embellishment on her part.Equally, they may simply have thought that, over six months after the event, A'smemory had conflated the second incident with aspects of the third, rendering heraccount of the earlier (as regards the penetration) unreliable. We are unable toconclude that the verdicts on charges two and three are demonstrably inconsistent.21 We note that during her cross-examination of A, defence counsel had also raised a question asto the physical impossibility of T simultaneously penetrating A with his fingers and licking herbreasts, while also covering her mouth with his hand. A's response ("He's got two hands") mayor may not have quelled any doubts the jury had in that regard.[45] We turn now to the "third incident" charges (charges four, five and six).This incident was the main focus of A's EVI. We have summarised that and herevidence under cross-examination above.[46] In seeking to establish that the evidence did not reasonably support the guiltyverdicts on these charges, Ms Beaton emphasised that:(a) there was no evidence corroborating that the third incident occurredand, more particularly, that:(i) no one else in the house heard anything despite A's evidence thatit was a prolonged assault in a modest sized home, in closeproximity to the rest of the family; and(ii) there was no evidence that anyone had seen any bruising orscratches on A afterwards;(b) A had made inconsistent statements about the incident, including inparticular that:(i) in her disclosure to H (the school counsellor) A referred toan uncle named "S" who was approximately 26 or 27 years old,and said that "sometimes" there was sexual intercourse;(ii) two days later (in her EVI) A denied that intercourse hadoccurred, saying that T had never put his penis in her vagina;22and(iii) elsewhere in A's evidence, and her written statement tothe school counsellor, she suggested that there had beenmultiple occasions of abuse which was at odds with her22 In re-examination she was asked by the Crown Solicitor about her knowledge of what sexualintercourse is, and eventually confirmed "It's when a guy puts his penis in a girl's vagina".confirmation in cross-examination that there had been onlythree incidents in total.[47] Without more, however, the absence of corroboration does not materiallyadvance matters. There will often be no corroboration in cases of this kind and we donot accept the absence of evidence from others about hearing noises or seeing bruisesassists much in terms of the unreasonableness threshold. And while we acknowledgethat the evidence about the third incident (from A herself and from those to whom shehad spoken) was not a model of consistency or clarity, we nonetheless consider thatthere was sufficient "core" evidence for the jury to reach the verdicts it did. There was,for example, a thread of consistency between her various accounts as to the key actsand A was consistently clear that there had been relatively serious offending inDecember 2015. Moreover, on the assumption that the jury accepted, for whateverreasons, that A was hedging or confabulating when she referred to "Uncle S", herevidence that it was T who was the perpetrator was, again, sufficient.[48] We are unable to conclude that the guilty verdicts here could not be reasonablysupported by the evidence at trial, for the reasons we have given. The convictionappeals are dismissed accordingly.SentencingThe "s 27" reports and the pre-sentence report[49] At sentencing, the Judge had before her letters, submitted under s 27 ofthe Sentencing Act 2002, from six members of T's family (his mother, siblings andmore distant whānau). These letters all described his many positive attributes andexpressing their support and love for him and their commitment to support hisrehabilitation. There was also a letter of support from his employer at the time ofsentencing.23 From reading those letters it seems possible that T might havedifficulties with communication. His biological mother raises the possibility ofFetal Alcohol Syndrome (FAS); she says she drank heavily while pregnant. Otherpoints of note are that T is fluent in Te Reo, has been brought up in the Mormon church,23 T had been bailed pending sentence.has a positive work ethic and apparently wishes to pursue higher education. It seemsclear that he has positively contributed to his wider whānau, his community and hischurch.[50] The pre-sentence report is brief and explores none of the issues raised bythe letters. Although assessing T as presenting a low risk of reoffending, the reportwriter expressly proceeds on the basis that imprisonment is the only option, giventhe penalties for offending of this kind.[51] Unsurprisingly (in light of T's conviction appeal) there has been no acceptanceof responsibility by T nor any expression of remorse.The construction of the sentence[52] The Judge began her sentencing by referring to the oral submission she hadheard from T's mother and the strong family support for him in Court. She observed:24 their support and the information that they have supplied are all likely tobe relevant to parole and release considerations.[53] Next, the Judge expressed her view that T's sexual offending fell either at thetop end of the R v AM unlawful sexual connection (USC) band one or the bottom ofthe R v AM USC band two, and that a four-year starting point was appropriate.25She identified five culpability factors: violence above that inherent in the act of sexualviolation, victim vulnerability, the harm to the victim, breach of trust given the familialrelationship, and the scale of the offending given there were two separate incidentsproved. Then, the Judge said:[14] Given the aggravating factors here and the scale of offending, and theaggravating factors I find present to a moderate degree, particularly on thebreach of trust, the victim vulnerability and harm to the victim, I consider thatthe starting point, based on those decisions, is four years. There were twoincidents, not counting the additional threat to kill reflected in charge 7.A threat to kill issued against a young victim is a serious matter. I cannot saythat it should be higher than four years. I cannot conclude that anything abovefour years would be justified. There are no personal aggravating factors, bothcounsel agree. 24 Sentencing notes, above n 1, at [1].25 At [7]–[14], referring to R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [113].[54] The Judge acknowledged that there were no aggravating personal factorsrequiring an additional uplift but declined a discount on the guilty plea. Fromthe combined four-year starting point, she gave a credit of six months (13 per cent) toreflect the absence of any significant previous convictions, his personal circumstancesand prior character, and the information in the s 27 letters about the level of familyand cultural support available to him.26[55] The end sentence of three and a half years' imprisonment was imposedconcurrently on charges six (sexual violation) and seven (threatening to kill), withconcurrent terms of 18 months' imprisonment imposed on charges two, four and five.The sentence appeal[56] Notwithstanding our rejection of T's conviction appeal, we have reachedthe conclusion that his sentence is manifestly excessive. Our reasons are as follows.[57] First, we consider that the Judge erred in her characterisation of the threateningto kill charge. As we noted above at [8] of this judgment, the conduct on which thethreatening to kill charge was founded involved T calling 111 and effectively turninghimself in to police as a method of anger management. At best, this conduct falls atthe very least serious end of the spectrum of such offending. That is especially sobecause, as we noted above, it is unclear on the evidence whether A heard, or wasaware of, the threat. Accordingly, we proceed on the basis that the psychologicaltrauma usually associated with this kind of offending, the harm, is absent. In our view,this very low-level offending does not justify uplifting the starting point.[58] We also consider that the Judge was wrong to identify a breach of trust as anaggravating factor. In our view, the fact that T was living in the same house as A, anda part of her family, does not of itself mean that T was living in a relationship of trustwith A — the age difference between the two of them was small, just five years, andwe do not see any evidence that T was fulfilling a parental role or something akin to26 At [15].that.27 To the contrary, as we go on to discuss, T was seen by his whānau as immaturefor his age and very much the baby brother of the family.[59] It follows that we would adopt a reduced starting point to that adopted bythe Judge. The starting point must nevertheless reflect that A suffered significant harmas a result of this offending, was vulnerable and that two charges of unlawfulsexual connection were proved. In light of these factors, a starting point aroundthe middle of the R v AM USC band one, three years' imprisonment, is appropriate.[60] The next issue is the extent of reduction in sentence justified by T's personalcircumstances. As the Judge acknowledged, the level of whānau and communitysupport for T, expressed in the s 27 letters before her, was significant.28 As s 27(1)(d)recognises, a real prospect of support of this kind can be relevant to an offender'srehabilitative prospects and to the type of sentence that may be appropriate.29 InT's case, the level of support evidenced by the letters, together with the personalqualities to which they attest, indicate that T's rehabilitative prospects are indeedstrong. That view was supported by the pre-sentence report writer's assessment of his(low) risk of future offending. That said, however, we acknowledge that T's failure,as yet, to take responsibility for his actions and (necessarily) the absence of remorsemust also be taken into account when considering T's rehabilitative prospects.[61] As noted earlier, the Judge gave T a six month (13 per cent) discount to accountfor the "s 27" personal factors. That was the discount proposed by the Crown andagreed as appropriate by Ms Beaton. It may be that the relatively low-level discountwas a consequence of the Judge's view (expressed more than once in her sentencingnotes) that whānau support would be particularly relevant on T's release and could betaken into account then by the Parole Board.[62] In the circumstances of this case, we have formed the view that this 13 per centdiscount was inadequate in terms of assisting T's rehabilitation and reintegration asmandated by s 7(1)(h) of the Sentencing Act. That is particularly so when27 Compare R v Takamore [2013] NZHC 719 at [23]; R v H [2016] NZHC 2705 at [28]; andMacKenzie v R [2007] NZCA 72 at [5].28 Sentencing notes, above n 1, at [15].29 R v Taulapapa [2018] NZCA 414 at [16].consideration is had not only to the s 27 matters strictly so-called, but also to thequestion of youth, which does not appear to have been separately taken into accountat all. There is no express recognition that he was only 19 or 20 at the time of theoffending itself,30 or of the greater capacity for rehabilitation possessed by youngpeople.31 We think that when T's youth is considered in combination with T's personalattributes, the very significant support and commitment expressed by his supportersand his low risk of reoffending, his prospect of rehabilitation is high and warrantsbeing at the forefront of the sentencing process.32[63] So, from a three-year starting point, and weighing T's rehabilitative potential,we think appropriate credit for youth and s 27 matters would be in the vicinity ofone third, or 12 months. That would take the end sentence into home detention range.Our strong sense is that that may well be the least restrictive outcome appropriate inthe present circumstances, notwithstanding the presumption contained in s 128B ofthe Crimes Act 1961.[64] The appeal against sentence is allowed accordingly. All sentences are quashedand the following are substituted:(a) a sentence of two years' imprisonment on the sexual violation charge(charge six);(b) a sentence of three months' imprisonment on the threatening to killcharge (charge seven); and(c) sentences of 12 months' imprisonment on charges two, four and five.[65] All of these sentences are imposed concurrently. Leave is granted under s 80Iof the Sentencing Act for T to apply to the District Court for home detention.30 His youth is also relevant to any fair assessment of the breach of trust involved in the offending;at 19 and 20 he was far from being A's much older "uncle" he was only five years older than she.31 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77]; and Overton v R [2011] NZCA648 at [27]–[33].32 We observe that T will necessarily remain subject to the three strikes law and will remain on theChild Sex Offender Register.Result[66] The appeal against conviction is dismissed.[67] The appeal against sentence is allowed. The sentences are quashed.[68] We substitute sentences for the offending as set out at [64]–[65] ofthis judgment. Leave is granted for T to apply to the District Court for home detention.[69] Given the close familial relationship between T and A, a suppression order forT is necessary to protect A's identity. Accordingly, we make an order prohibitingpublication of the name, address, occupation or identifying particulars of the appellantpursuant to s 200 of the Criminal Procedure Act.Solicitors:Crown Law Office, Wellington for Respondent