T (CA742/2017) v R [2019] NZCA 150

T (CA742/2017) v R [2019] NZCA 150 [9 May 2019]NOTE: PUBLICATION OF ANY INFORMATION THAT IDENTIFIES, ORTHAT MAY LEAD TO THE IDENTIFICATION OF JUROR PROHIBITED BYS 32B OF THE JURIES ACT 1981.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA742/2017[2019] NZCA 150BETWEEN T (CA742/2017)AppellantAND THE QUEENRespondentHearing: 11 February 2019Court: Miller, Simon France and Peters JJCounsel: J G Krebs for AppellantK S Grau for RespondentJudgment: 9 May 2019 at 3.00 pmReissued: 10 May 2019JUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is allowed in part.C The sentence imposed in respect of the sexual violation by rape charges isquashed and a sentence of 18 years and six months' imprisonment issubstituted.D The sentence imposed in respect of the wilful ill-treatment charge isquashed and a sentence of one year and six months' imprisonment issubstituted, to be served cumulatively.E The minimum period of imprisonment imposed is also quashed and anMPI of eight years and six months is substituted.F The sentences imposed on all other charges remain and are to be servedconcurrently.REASONS OF THE COURT(Given by Peters J)[1] The appellant, T, was convicted of 31 offences following a jury trial beforeJudge D G Harvey in the District Court at Whangarei in late-2017. He now appealsagainst conviction and his sentence of 23 years, and the imposition of a minimumperiod of imprisonment (MPI) of 10 years. The appeal against conviction is broughton the ground that there has been a miscarriage of justice and against sentence on theground that it is manifestly excessive.Offending[2] The Crown case was that T committed the offences against his stepdaughters,J and K, and his stepson D. T and the children's mother, A, commenced a relationshipin 2005 and married in 2008. They separated in early-2014. Thereafter the childrenremained in T's care until June 2015 when they went to live with A's sister, O. Thisnot only brought an end to the offending, but led to the police investigation and thelaying of charges against T. T denied all of the allegations against him.[3] The trial commenced on Monday, 30 October 2017. The Crown adducedevidence from J, K and D, their evidence in chief being given by evidential videointerviews. The Crown also called A, O, a psychologist who gave "counterintuitive"evidence and several police officers, including the officer in charge,Detective Bradshaw, to whom we refer below. The Crown closed its case on theMonday of the second week, 6 November 2017, following which the defence calledthree witnesses, being T's parents and his daughter. Thereafter, counsel made theirclosing remarks, the Judge summed up and the jury returned with their verdicts on 9November 2017.J[4] The offending against J, the older of the two girls, began in 2008 when she wasseven, and persisted until June 2015. It comprised:• 11 charges, six representative, of sexual violation by rape;• two of sexual violation by unlawful sexual connection;• two of indecent assault of a child younger than 12 years, of which one wasrepresentative; and• two of supplying cannabis to a person younger than 18 years, bothrepresentative charges.[5] T was alleged to have supplied cannabis to both girls to facilitate the offending.K[6] T was convicted of 12 charges against K. This offending began in 2013, whenK was seven and likewise continued until June 2015. It comprised:• five charges of sexual violation by rape, of which one was representative;• two of indecent assault on a child younger than 12, one of which wasrepresentative;• two assaults on a child, one of which was representative; and• three of supplying cannabis to a person younger than 18 years, two ofwhich were representative.D[7] The remaining two charges, one representative of assaulting a child and one ofwilful ill-treatment, relate to D. D was aged eight when T first assaulted him inJune 2013. The wilful-ill treatment consisted of giving alcohol to D ― to the pointwhere he was completely drunk ― when he was aged seven. The jury acquitted T ofa further four charges of violence relating to D, D being unable to recall the incidentsdescribed in his DVD interview.Summary of offending[8] In total, T was convicted of the following charges:• 16 of sexual violation by rape, seven of which were representative;1• two of sexual violation by unlawful sexual connection;2• three of indecent assault on a child under 12 years, two of which wererepresentative;3• five of supplying cannabis to a person younger than 18 years, four ofwhich were representative;4• four of assault on a child, two of which were representative;5 and• one of wilful ill-treatment of a child.61 Crimes Act 1961, s 128(1)(a): maximum penalty 20 years' imprisonment.2 Section 128(1)(b): maximum penalty 20 years' imprisonment.3 Section 132(3): maximum penalty 10 years' imprisonment.4 Misuse of Drugs Act 1975, s 6(1)(d): maximum penalty eight years' imprisonment.5 Crimes Act, s 194(a): maximum penalty two years' imprisonment.6 Section 195: maximum penalty 10 years' imprisonment.Sentencing[9] The Judge sentenced T on 18 December 2017. He put the offending against Jand K within band four of R v AM, for which a starting point of 16 to 20 years willgenerally be appropriate.7 The sentence of 23 years comprised:(a) 18 years' imprisonment in respect of the offending against J;(b) an uplift of two years for the offending against K. Judge Harveyconsidered this offending would have warranted a sentence of 16 years'imprisonment if tried separately; and(c) three years' imprisonment for the offending against D.Appeal against conviction[10] The appeal against conviction is brought on the ground that a miscarriage ofjustice has occurred for two reasons. The first is that the trial was unfair because aformer police officer was a member, and indeed foreperson, of the jury giving rise tothe risk of juror bias. The second ground is alleged error by T's trial counsel, MrFairley, in several respects, including failing to challenge the juror's presence on thejury.[11] A miscarriage of justice will have occurred if any error, irregularity, oroccurrence in or in relation to or affecting the trial has created a real risk that theoutcome of the trial was affected or has resulted in an unfair trial.8 A "real risk" arisesif "there is a reasonable possibility that a not guilty (or more favourable) verdict mighthave been delivered if nothing had gone wrong".97 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.8 Criminal Procedure Act 2011, s 232(4).9 Swain v R [2018] NZCA 259 at [22], citing R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730at [110]; and Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [29].G[12] After trial, Mr Fairley received three letters, signed "G". G claims to havebeen a juror at the trial and makes a number of allegations as to events that transpiredin the course of trial and after verdicts were taken. There is no evidence as to who Gis, or that he or she was a member of the jury as claimed. Mr Krebs does not placeany reliance on the letters and we disregard them accordingly.First ground of appeal ― juror issue[13] The submission for T as regards the juror is that the risk that they could notand did not bring an open mind to her task is so great that this Court cannot be surethat T had a fair trial.[14] The background to this ground of appeal, set out in the next few paragraphs,derives from a report from the Judge; affidavits from Detective Bradshaw and hersupervisor, Detective Senior Sergeant (DSS) Clayton; and parts of Mr Fairley and T'saffidavits on appeal.Judge's report[15] The juror spoke to the Judge when her name was drawn in the ballotingprocess. She told the Judge that she was a former police officer and that, although sheknew the officer in charge (Detective Bradshaw), their relationship "was purelyprofessional in nature and that she did not know her well". The Judge asked the jurorwhether the fact that she was a former police officer or her prior association with theofficer in charge: would in any way affect the way in which she dealt with the evidence. [Thejuror]'s answer was a very positive "Of course not".[16] The juror did not ask to be excused, the Judge did not consider there weregrounds on which to disqualify her and he allowed her to take her place on the juryaccordingly. The Judge did not inform counsel of his discussion with the juror.Affidavits of DSS Clayton and Detective Bradshaw[17] Detective Bradshaw and the juror would seldom have encountered each othereven though both worked at the Whangarei station. The juror was uniformed staff,transferred to Whangarei in 1997, thereafter was promoted to senior sergeant and wasthe station senior sergeant for approximately five years before leaving the police.As such, her role was to "run the front counter and watchhouse areas".[18] Detective Bradshaw was a member of the station's CIB staff. As such she wasrequired to investigate allegations of serious crime. Detective Bradshaw joined theCIB staff at the Whangarei station in May 2008.[19] Uniformed and CIB staff rarely work together, are situated on different floorsof the station and any social events for the two groups are conducted separately forlogistical reasons. Detective Bradshaw's evidence, consistent with the juror's adviceto the Judge, is that she had never socialised with the juror, and that she had norelationship with her, professional or otherwise, beyond serving at the samepolice station.Mr Fairley[20] Mr Fairley had already used T's four challenges without cause before thejuror's name was called and, in any event, he only recognised her as a former policeofficer after the jury had been empanelled. Mr Fairley spoke to T regarding the jurorduring the lunch adjournment on the first day of trial. He told T that he understoodthe juror had left the police after her partner, also in the police, had apparently beeninvolved in a drink-driving incident, and thus it should not be assumed she wouldfavour the Crown. Mr Fairley also advised that there might not be grounds tochallenge the juror's presence on the jury, as presumably she had informed the Judgeof her former occupation when she spoke to him, and that occupation on its own wouldnot preclude her serving on the jury. Mr Fairley is correct that the juror was notautomatically disqualified from serving by reason of her former employment.1010 Juries Act 1981, s 25(3).[21] Mr Fairley's evidence was that, after this discussion, T agreed that she shouldbe left to serve as a juror and he signed Mr Fairley's contemporaneous note to thiseffect. Accordingly, no challenge was made.T[22] T's evidence on this point is that he learned that the juror was a formerpolice officer after the trial commenced, by which time it was impossible to "doanything about it". However, this evidence from T does not refer to Mr Fairley'sevidence that the two made a tactical decision not to challenge the juror's presence onthe jury.Submissions[23] Mr Krebs does not contend that the juror was biased in fact but rather that, asa former police officer, she cannot be seen to have brought an open and impartial mindto her task as a juror, such that this Court cannot be satisfied that T received afair trial.11 Mr Krebs submitted that the juror's own actions in disclosing her formeroccupation to the Judge are evidence of this.[24] Mr Krebs also submitted that, as the forewoman, the juror would have hadinfluence in the jury room; that in all likelihood the jury came to know that she hadbeen a police officer and an experienced one at that; that the jury would have lookedto her to "fill in the gaps"; and that the Judge failed to give counsel an opportunity tomake submissions on whether the juror should be excused.[25] Ms Grau, Crown counsel, acknowledged that the Judge ought to have informedcounsel of his discussion with the juror and given them an opportunity to respond― we agree ― but she rejects this submission overall. First, she makes the point thatthe juror was not disqualified from serving as a juror by reason of her formeremployment.12 Secondly, there is no suggestion that the juror had any personalconnection to the case or to any party or witness.1311 New Zealand Bill of Rights Act 1990, s 25(a) "the right to a fair and public hearing by anindependent and impartial court".12 Juries Act 1981, s 8.13 Section 16(3)(b).Discussion[26] As a former police officer, the juror was not disqualified from serving onthe jury. Although s 8 of the Juries Act 1981 disqualifies a person engaged in aparticular occupation, such as a Member of Parliament, a Judge, and a police officerfrom serving, that disqualification continues only whilst the person is so engaged,quite possibly because thereafter there is no longer any reason to assume, withoutmore, a lack of independence from, or partiality to, the prosecution.14[27] That said, any jury must be impartial and be seen to be so. The jury in this casewill not be seen to be impartial if a fair-minded and informed member of the publicwould have a reasonable apprehension or suspicion that the juror would not havedischarged her task impartially.15[28] In this case, that member of the public would know that the juror had resignedfrom the police some three years before the trial, that she had no past or presentconnection with the case or with Detective Bradshaw, and that she had given the Judgean assurance she was capable of performing her obligations.[29] Aside from the authorities to which counsel referred us, we have alsoconsidered relevant English authority. The automatic disqualification provision thatwas previously included in the criminal procedure legislation in that jurisdiction hasbeen repealed, so that a serving police officer (amongst others) may serve on a jury.16This has given rise to a number of appeals in which allegations of apparent bias havebeen made on the ground that the appellant's jury included a police officer and thatthe fairness of the trial was therefore in doubt. In resolving those appeals, the courtshave considered all the circumstances of the trial such as the juror's connection to thecase or to an officer involved in the trial, or the extent to which the jury's verdict mighthave depended on whether or not it accepted contentious evidence given by a policeofficer at trial.17 In the latter case, apparent bias is more likely to be found.14 R v Khan [2008] EWCA Crim 531, [2008] 3 All ER 502 at [3].15 R v C (CA395/2008) [2009] NZCA 272, [2010] 2 NZLR 289.16 Criminal Justice Act 2003 (UK), sch 33.17 R v Khan, above n 14. See also R v Abdroikov [2007] UKHL 37, [2007] 1 WLR 2679.[30] In the present case, the critical issue for the jury was whether it accepted thecomplainants' evidence. The police evidence was uncontroversial. The evidence ofthe child interviewers was read by consent and Detective Bradshaw's evidenceconcerned her arrest of T and of his two prior convictions for assault on K. Informedof these matters, we consider a member of the public even less likely to apprehend anypossibility of bias on the part of the juror.[31] We mention three other points. The first is that we do not agree with Mr Krebsthat the juror's approach to the Judge should be construed as recognition by her of a"problem". It was the responsible thing to do. The second is that Mr Krebs'submission as to the juror's standing and influence with the jury is entirely speculative.The third is Ms Grau's submission to the effect that T made an informed decision toproceed with the trial with her on the jury. A similar situation arose in Turner v R,18in which the defendant's trial counsel decided to take no action when he became awarethat the foreman on the jury had, until comparatively recently, been a senior policeofficer and in charge of prosecutions at a local police station. This Court said that, byallowing the trial to proceed, the defendant in that case had waived any right to contendthat there was a risk of injustice.[32] Mr Krebs expressed reservations about Turner given the failure to refer tos 25(a) of the New Zealand Bill of Rights Act 1990 and to other important authority.19We decline to revisit Turner. In this case, T made an informed decision to proceedand we are not persuaded it was wrong.[33] Lastly on this point, we agree with both counsel that the Judge ought to havegiven counsel the opportunity to make submissions as to whether she should sit on thejury. Although nothing has come to light which suggests the juror should have beenexcluded, a future case may be different.18 R v Turner CA 439/95, 25 July 1996. The pertinent test being whether the juror's irregular, orpurportedly irregular, conduct or status would "give rise to a reasonable apprehension or suspicionon the part of a fair minded and informed member of the public that the juror or jury has notdischarged or will not discharge its task impartially": Webb v The Queen (1994) 181 CLR 41;R v Tainui [2008] NZCA 119; Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007]3 NZLR 495; Cavanagh v R [2010] NZCA 36; and Fraser v R [2010] NZCA 313.19 Webb v The Queen, above n 18.Alleged counsel error[34] Mr Krebs submitted that Mr Fairley erred in his conduct of the trial and in hisadvice to T in several respects. The errors alleged concern matters of judgment of thetype that will generally only give rise to a miscarriage of justice if the decision wasnot one competent counsel would have made and if what occurred may have affectedthe outcome.20[35] The most significant failure alleged is Mr Fairley's advice to T that neither henor his wife, M, should give evidence. Mr Krebs advised this is T's principalcomplaint, so we shall address it first.Mr Fairley's advice to T that he should not give evidence[36] Up to the fifth day of trial, Friday 3 November 2017, both Mr Fairley and Texpected that the latter would give evidence, denying all offending. T was willing togive evidence and Mr Fairley thought that he would be a good witness in his owndefence. Mr Fairley had a comprehensive brief of evidence, and had had manydiscussions with T.[37] On 3 November the Crown prosecutor, Ms O'Connor, provided Mr Fairleywith several still photographs taken from what is referred to as the "waxing" video. Itwas these photos, and the video itself, which caused Mr Fairley to reconsider whetherT and M should in fact give evidence.Video[38] Although the prosecution had disclosed the video in April 2017, Mr Fairley didnot watch it prior to trial.[39] We watched most of this nine-minute video during the hearing of the appeal.It had been taken on J's cell phone, and it showed M waxing around T's anus whilsthe was lying face down on a bed, naked but for a pair of underpants which he pulledup and down as required. J and K were both present and can be heard giggling in the20 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [77].background. We add that it was seeing this video on J's cell phone that caused thechildren's mother, A, and aunt, T, to make immediate contact with the police.[40] Mr Fairley's evidence, denied by T but borne out by Mr Fairley'scontemporaneous notes, is that he and T had a conversation on the Friday to the effectT would consider the implications of the video over the weekend. T of course knewwhat was in the video. Mr Fairley's note of this discussion, signed by T, also recordedthat T knew the Crown might seek to cross-examine him on the video and show it tothe jury if he gave evidence. Another note Mr Fairley made later that day confirmedthat over the weekend T was to think about the issue, and about whether M should becalled.[41] T and Mr Fairley watched the video together prior to Court on Monday,6 November 2017. Mr Fairley's notes record that T thought "the video was not asbad as thought, not ideal but agree not a reason not to give evidence". T then went toCourt.[42] On viewing the video, Mr Fairley was concerned that it would be highlyprejudicial to the defence if the jury saw it. We agree. Mr Fairley considered, againcorrectly in our view, that the video showed J and K, both still very young girls, hadbeen sexualised, and that T did not observe appropriate boundaries as to what was andwas not suitable for young children. Mr Fairley also thought the video admissible, asdo we (and Mr Krebs did not disagree); that the Crown was almost certain to play thevideo if T gave evidence denying sexual contact with the children; and that this wouldseverely damage, if not destroy, his credibility. Likewise with M, who was presentthroughout the event.[43] To double check his assessment, before going to Court himself, Mr Fairleyshowed the video to several members of his firm, including two secretaries and twoformer prosecutors. All confirmed that it would be highly damaging to the defencecase if the jury saw the video.[44] The Crown closed its case without having produced the video or thephotographs, something that Mr Fairley (and apparently T) considered a very luckybreak. The two continued their discussions about whether T and M should giveevidence, but with no final decision needing to be made until the Crown closed itscase. They had a final discussion after the Crown closed its case and, again, this isrecorded in a note Mr Fairley made and which T signed. This note records thatMr Fairley made it clear the decision to give evidence was T's alone; recorded that thejuror had a teenage daughter and might particularly dislike the video; linked the videoto counterintuitive evidence that had just been given; recorded that T had decided notto give evidence because it was dangerous to do so and that M should not be called;and that Mr Fairley should call T's parents and daughter to give evidence. Mr Fairleyhad asked Mr Aaron Harvey, who is at Mr Fairley's firm and about whom a separatepoint arises, to be present to ensure that T's instructions were correctly recorded andMr Harvey's note is in similar terms.[45] In his evidence to us, T did not agree that he saw the still photographs or thathe had any discussion with Mr Fairley about the ramifications of the video before theMonday morning. To the extent he accepted Mr Fairley's advice not to give evidence,T did so reluctantly and under pressure. T acknowledged that he would have beensubject to a forceful cross-examination but said he wished to give evidence to defendhimself and to express his innocence.Submissions[46] Mr Krebs submitted that Mr Fairley's failure to watch the video well before hedid put T under time pressure to make the critical decision of whether or not he shouldgive evidence. That decision was, obviously, very important because if T gaveevidence, he was likely to be confronted with the video but if he did not the jury wouldnot hear him denying the offending. T had not made a statement to the police.[47] Mr Krebs also submitted that, much as the video might appear very damagingon first watching, its impact could have been alleviated by emphasising certain mattersto the jury. These included that the video did not disclose any offending, that T didnot expose his genitals at any time, that he and M did not engage in any sexualbehaviour in front of the girls, and that he was always careful to pull up his underpantswhen he was turning over on the bed. Mr Krebs also submitted that Mr Fairley couldhave asked the Judge to direct the jury as to the proper use of the video in theirdeliberations.[48] Having seen the video, we doubt these proposed "damage limitation" measureswould have been of much help to T.[49] Mr Krebs also submitted that Mr Fairley might have proceeded differently attrial had he and T discussed the video earlier, and that the expectation of calling Tmight have affected Mr Fairley's conduct of the case. Mr Fairley denied this andMr Krebs could not identify anything in the record to support his submission. We sayno more about it accordingly.[50] In response, Ms Grau submitted that T had sufficient time in which to make hisdecision. The issue of the video had been raised with him on the Friday morning andhe knew what was in it. She also submitted that T had several discussions withMr Fairley about the issue and, ultimately, made his own decision on whether or nothe would give evidence.Discussion[51] We are satisfied that T had sufficient time to decide whether or not he shouldgive evidence, that is from the Friday to the Monday. He was not asked to decide "onthe spot" and he knew what was in the video.[52] Mr Krebs submitted that Mr Fairley might have sought an adjournment ormistrial to give T more time. He did not explain, however, how more time might haveaffected the decision. Moreover, we consider it highly improbable that any Judgewould have allowed such an application in the prevailing circumstances.[53] When T made his decision not to give evidence, he had Mr Fairley's consideredview, reinforced by others in Mr Fairley's office, that he was very likely to beconvicted if the jury saw the video, but that he had some prospect of acquittal if theydid not. Having had that advice, T elected not to give evidence. The fact that T wasconvicted does not mean the advice or the decision was wrong.[54] Given the above, we are not persuaded that there was any error on the part ofcounsel giving rise to a miscarriage of justice.The juror[55] Mr Fairley's failure to advise T to challenge the juror is also submitted to becounsel error. For the reasons given above we are satisfied there was no error.Failure to call certain witnesses[56] T's next point is that Mr Fairley erred in not calling several witnesses whoseevidence could have demonstrated that A was or is a habitual liar who fabricatedthe complaints and put the children up to testifying.[57] There is nothing in this point. Mr Fairley's evidence is that he called suchwitnesses as T instructed, being T's parents and his daughter. M was not called for thereasons given above. Mr Fairley says that he had no instructions to call the witnessesnow identified by T and that he had no briefs of evidence for them; that he had apositive instruction that he should not call one of them; and that, to the extent theirevidence might have been material, it was adduced in any event, throughthe complainants and A.Alleged inadequacies in cross-examination[58] T also submitted that Mr Fairley was insufficiently aggressive incross-examining D.[59] Under cross-examination, D retreated from many of the very seriousallegations he had made against T, usually by saying that there had been a "mistake"or he could not "remember" the incident alleged. The point made for T is that thispresented an opportunity to demonstrate that A had engineered the allegations and thatMr Fairley failed to capitalise on it.[60] Mr Fairley's assessment was that T's case would not be assisted by him"sledgehammering" D and his retractions. D was young, the jury would not have beenimpressed by Mr Fairley attacking him, and Mr Fairley was confident the jury had"got the message" in any event.[61] We do not consider there is anything in this point. It was for Mr Fairley todecide how best to cross-examine D, and this Court will not second-guess suchdecisions, as there is no prospect of their affecting the outcome of the trial.Apparent counsel bias[62] Mr Harvey, to whom we referred above, is Judge Harvey's son and employedat Mr Fairley's firm. T's evidence is that he would have instructed other lawyers hadhe known this. Again, there is nothing in this objection. Mr Fairley did not tell T ofMr Harvey's relationship with Judge Harvey because he considered it irrelevant.Mr Harvey had no involvement in the trial, save in the respect referred to above, andgiving Mr Fairley his views on the video, which were the same as Mr Fairley's own.Adequacy of preparation[63] Mr Krebs elected not to pursue an earlier suggestion that Mr Fairley'spreparation for trial had been inadequate.Result on appeal against conviction[64] It follows from the above that we dismiss the appeal against conviction.Appeal against sentenceDistrict Court[65] As we said at the outset, the Judge adopted a starting point of 18 years for theoffending against J, with an uplift of two years for the offending against K. The Judgeconsidered that, on its own, the offending against K would have warranted a startingpoint of 16 years. The Judge imposed a three year, cumulative, sentence for theoffending against D. He did not uplift for T's prior convictions which were of noparticular relevance but equally made no allowance for any personal mitigatingfactors, so the end sentence remained unchanged. The Judge considered that all of thepurposes for which an MPI might be imposed were present, and that the maximum of10 years would be appropriate.Submissions[66] There was no dispute in the District Court, or in this Court, that the startingpoint for the offending against J and K fell to be determined by reference to R v AM.21[67] The Crown, and the Judge, placed this offending squarely within band four,meaning a starting point of 16 to 20 years' imprisonment. Contrary to this, Mr Fairleysubmitted in the District Court, and Mr Krebs in this Court, that the offending was onthe cusp of bands three and four. Mr Krebs submitted the offending against J shouldattract a starting point of no more than 16 years' imprisonment, with an uplift of 12 to18 months for K. He submitted the offending against D should have been dealt withby an uplift of one year. This gives a total starting point and, in this case, end sentenceof no more than 18 years, six months.[68] Mr Krebs also submitted that there was no need for an MPI on a sentence ofsuch length. The minimum of six years that T would inevitably serve was sufficientlylong to meet all requisite purposes, and an MPI, let alone one of 10 years, wascrushing.[69] The Crown submitted that the end sentence was within range. The combinedstarting point of 20 years for the offending against the two girls could not beconsidered manifestly excessive; a cumulative sentence for the offending againstD was required, although three years might be at the upper end; and overall the endsentence of 23 years was not excessive because the starting point for the offendingagainst the girls might have been higher. As to the MPI, Crown counsel submitted thiswas routine, and she supported the Judge's determination that an MPI was required inthis particular case.21 R v AM, above n 7.Discussion[70] The offending against J and K, consisting of the repeated rape of one or morefamily members, requires a starting point within band four. Indeed, this case is on allfours with what the Court of Appeal in R v AM described as the "paradigm" case,warranting a starting point at the higher-end of the 16 to 20-year range.22The aggravating features are obvious: sustained offending over a lengthy periodagainst young, vulnerable victims; breach of trust given that T stood in the place ofthe girls' father; planned and pre-meditated offending; and causing incalculable harm.It was facilitated by T plying the girls with cannabis so they were incapable ofresistance and, in K's case, by violence. The Judge was satisfied both girls wouldhave been terrified of T.[71] Although different in kind, the offending against D occurred within the sametime period. In our view, the most this offending warranted was one year to 18 months,so three years was manifestly excessive. We also consider another Judge might haveconsidered a concurrent sentence should be imposed.[72] Standing back, we agree with Mr Krebs that the overall sentence of 23 yearswas manifestly excessive and that an end sentence of 20 years was appropriate.We consider 18 years, six months' is the proper sentence for the offending against Jand K, and 18 months, on a cumulative basis, warranted for the offending against D.[73] There are no mitigating circumstances that call for a reduction in thesentence. T was able to produce references attesting to his work ethic and somepositive characteristics. But he cannot claim prior good character. He has asubstantial list of convictions for offences of dishonesty and male assaults female, andthe offending in this case occurred over a long period.[74] We agree that the circumstances were such that an MPI was warranted. Seriousand sustained intra-family offending of this kind calls for accountability anddenunciation. That said, the maximum MPI of 10 years was not required and, taking22 R v AM, above n 7, at [109].into account our reduction to the end sentence, we reduce the MPI to eight years, sixmonths.Result[75] The appeal against conviction is dismissed.[76] The appeal against sentence is allowed in part.[77] We quash the sentence of 20 years' imprisonment on all charges of sexualviolation by rape and substitute a sentence of 18 years and six months' imprisonment.[78] We quash the sentence of three years' imprisonment on the charge of wilfulill-treatment and substitute a sentence of one year and six months' imprisonment,cumulative on the sentence imposed in [77].[79] We reduce the minimum period of imprisonment from 10 years to eight yearsand six months.[80] The sentences imposed on all other charges remain and are to be servedconcurrently.Solicitors:Crown Law Office, Wellington for Respondent