TE KIRI GEOFFREY WILLIAMS v R [2021] NZCA 535

TE KIRI GEOFFREY WILLIAMS v R [2021] NZCA 535 [13 October 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA330/2020[2021] NZCA 535BETWEEN TE KIRI GEOFFREY WILLIAMSAppellantAND THE QUEENRespondentHearing: 22 July 2021Court: Miller, Thomas and Wylie JJCounsel: H G de Groot and TWR Lynskey for AppellantM J Lillico and S E Trounson for RespondentJudgment: 13 October 2021 at 2.00 pmJUDGMENT OF THE COURTA An extension of time for filing the appeal is granted.B The appeals against conviction and sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Thomas J)Table of contentsIntroduction [1]CONVICTION APPEAL [5]The facts as found at trial [5]Was the trial unfair? [14]The standard for an unfair trial [14]Submissions [16]Relationship evidence and this case [27]What did the defence know prior to trial? [32]Crown call-over memoranda [32]The complainant's brief of evidence [35]Charge list [45]Summary of facts [46]Observations on pre-trial approach [47]During the trial [50]Discussion [55]Other matters [84]Veracity of defence witness [84]Failure to call relevant witnesses [90]Trial Judge's directions [92]SENTENCE APPEAL [96]The sentencing decision [96]Mr Williams' appeal [102]What was the appropriate starting point? [106]Were the discounts inadequate? [112]RESULT [117]Introduction[1] Te Kiri Williams was convicted following a jury trial and sentenced to nineyears and two months' imprisonment on six charges of offending against thecomplainant: three charges of male assaults female, one of injuring with intent toinjure, one of assault with intent to injure and one of sexual violation by rape. All ofthese charges involved Mr Williams' abuse of his former partner with whom he hadbeen in an on-again off-again relationship for ten years. Although only one of thecharges was representative, the complainant's evidence at trial was wide-ranging,painting a picture of a relationship in which Mr Williams was highly controlling andseriously violent towards her over a sustained period.[2] Mr Williams appeals his convictions on the following grounds:(a) that during her evidence-in-chief, the complainant introduced a rangeof inadmissible and prejudicial evidence and took the trial into her ownhands and as a result, the trial was unfair and there was a miscarriageof justice;1(b) the evidence of a previous statement made by a defence witness wasnot substantially helpful in assessing her veracity and was otherwiseinadmissible under s 8 of the Evidence Act 2006;(c) there was no proper basis for the Crown to have excluded that witnessand others from its witness list, irrespective of whether they hinderedthe prosecution case; and(d) the counter-intuitive evidence directions given by the trial Judge wereimpermissible.[3] Mr Williams appeals his sentence on the grounds that the starting point wastoo high and an inadequate discount was given for his personal and culturalcircumstances.[4] Mr Williams's appeal was filed six days out of time. The delay was short andthe Crown accepts there is no prejudice. An extension of time is granted.CONVICTION APPEALThe facts as found at trial[5] The following description of the offending comes from the trial Judge'sassessment of the evidence as set out in his sentencing notes.2[6] On 19 May 2018, Mr Williams and the complainant were staying in a motelunit with two of Mr Williams' adult children and their partners. At some stage thatnight, Mr Williams and the complainant argued and he punched her to the head1 Criminal Procedure Act 2011, s 232(2)(c) and (4)(b).2 R v Williams [2020] NZDC 8781 [Sentencing notes].repeatedly. The force of the blows was enough to knock her off her feet. This was thebasis of the first male assaults female conviction.[7] When Mr Williams stepped outside, the complainant attempted to crawl awayand leave. When Mr Williams saw her, he grabbed her by her left leg and twisted orwrenched it. This caused her left knee to become swollen and painful, leaving herunable to walk properly. According to one of the medical expert witnesses, it wasmore likely than not that the twisting caused the complainant's kneecap to becomedislocated. This was the basis of the injuring with intent to injure conviction.[8] On 12 July 2018, the police stopped the car Mr Williams was driving.The complainant talked to police and told them that she was being held byMr Williams against her will. Mr Williams then started to complain of chest pains,causing the police to call an ambulance. The complainant was taken by the police toanother location for her safety. The following day, she suffered a seizure and wasadmitted to hospital. There, she was spoken to by a police detective and made astatement alleging abuse.[9] The complainant said she and Mr Williams had argued in the car andMr Williams assaulted her by choking, grabbing and punching her, and striking herhead with a full can of alcohol. She said Mr Williams had thrown her into the boot ofthe car and only allowed her out a short time before being stopped by police.The police detective noted bruising to the complainant's neck, arms, upper body andforehead. This was the basis of the second male assaults female conviction.[10] After being discharged from hospital, the complainant was taken by police toa safe house. She was later relocated to a women's refuge in Kaitaia. After learningof her whereabouts, one of Mr Williams' children visited the complainant and pleadedfor her to return. The complainant eventually agreed to do so.[11] On 23 July 2018, the complainant was driven back to Mr Williams' address inAuckland. Upon re-entering the house, Mr Williams began abusing her almostimmediately, accusing her of cheating on him. When the complainant denied this, hepunched her repeatedly about the head and body. This was the basis of the third maleassaults female conviction.[12] The physical assaults continued over the next two days, increasing in severity.They culminated in what the complainant described as the "worst hiding" she hadsuffered at Mr Williams' hands. The assaults included punching, stomping on herthroat, kicking her injured knee and pulling her hair. Mr Williams wrapped a phonecharging cord around the complainant's neck, restricting her breathing to the point shelost consciousness. This was the basis of the conviction on the representative chargeof assault with intent to injure.[13] When she regained consciousness, the complainant discovered she was nakedand Mr Williams was lying on top of her having penetrative sex without her consent.This was the basis of the rape conviction.Was the trial unfair?The standard for an unfair trial[14] This Court considered what amounts to an unfair trial in Wiley v R.3 It observedthat not every error, irregularity or occurrence will result in an unfair trial.4The assessment is to be made in relation to the trial overall. Referring toLord Bingham's observation in Randall v R,5 the Court noted that there will come apoint when a departure from good practice is so gross, or so persistent, or soprejudicial, or so irremediable, an appellate court will have no choice but to condemnthe trial as unfair and quash the conviction as unsafe.6[15] The Court provided a non-exhaustive list of categories where the issue of anunfair trial may arise (including counsel error and lack of legal representation) but alsostressed that the range of matters may be "extensive".73 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1.4 At [35], referring to R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78].5 Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].6 At [35].7 At [40].Submissions[16] The complainant had given three separate statements before the trial, includingan electronically recorded interview.8 In pre-trial call-overs, the Crown had indicatedit would lead evidence of other assaults alleged to have occurred during the chargedincidents and evidence of drug use, but undertook not to lead evidence of unrelatedcriminal offending referred to by the complainant, or Mr Williams' family's gangconnections.[17] Despite this, in Mr de Groot's submission for Mr Williams, the complainant'sevidence went significantly beyond those statements, introducing an array ofallegations that formed no part of the Crown case. These allegations fell into threeseparate categories:(a) Category one: allegations that Mr Williams was violent during thecharged incidents. These included allegations of detention,strangulation, suffocation, assaults with objects (stones and atelevision), property damage, poisoning, general violence, threats fromMr Williams' family and additional sexual assaults in the course of therape.(b) Category two: allegations of Mr Williams' violence unrelated to thecharged incidents. These included habitual assault, strangulation,police call-outs, burning the complainant for refusing to smokemethamphetamine, selling methamphetamine with his mother,breaking the complainant's fingers, drugging his son and then havingsex with his son's partner and forcing the complainant to watch, forcingobjects under her fingernails and additional sexual assault. Mr de Grootmaintained that most of these allegations had not been referred to in thecomplainant's statements or had been deleted from them.8 We have been provided with two written statements but not the transcript of the electronicallyrecorded interview.(c) Category three: allegations of unrelated offending, "bad character" orother prejudicial evidence. These included Mr Williams' familyintimidating medical staff in gang regalia, Mr Williams' detaining thecomplainant, efforts to evade police, manipulating and isolating thecomplainant from others, supplying methamphetamine to Mr Williams'children and to prostitutes, starving the complainant, restricting accessto her medication, taking and selling her medication, threats to kill her,threats to kill her children, kidnapping her daughter, threats by hisfamily and reference to his having been in prison. Mr de Grootmaintained that almost none of these allegations were in thecomplainant's statements, or had been deleted from them.[18] Mr de Groot characterised the category one evidence as propensity evidencewhich, he accepted, arguably went to proving a pattern of violence and cycle oftoxicity in the relationship.9[19] However, referring to the case of Edmonds (discussed below),10 Mr de Grootsubmitted that the complainant unfairly took the trial into her own hands and thisresulted in unfairness because:(a) she was warned prior to the trial to avoid referring to inadmissiblematerial;(b) she was spoken to after she referred to gang affiliations and prison butreferred to both again;(c) large amounts of propensity and other prejudicial evidence wereintroduced by the complainant which was then referred to by otherwitnesses;9 Mr de Groot abandoned the ground of appeal criticising the propensity directions.10 Edmonds v R [2015] NZCA 152 at [24], where the Court noted it would be more likely to find amiscarriage of justice had occurred if "a witness had unilaterally, or at the invitation of the Crown,taken matters into his or her own hands and introduced damaging and irrelevant material thataffected the fairness the trial".(d) that evidence was almost entirely unsignalled in the formal writtenstatements or had been deleted, indicating that the Crown did not intendto lead it;(e) only two aspects of the evidence were remediated by the Judge'sdirections (gang affiliations and time in prison); and(f) much of the evidence was given in the complainant's evidence-in-chiefand was given gratuitously.[20] In Ms Trounson's submission for the Crown, evidence of conduct arising fromthe same incident was admissible under ss 7 and 8 of the Evidence Act. The unchargedallegations formed part of the overall events that were the subject of the charges. Thatevidence was therefore probative and material to proving each assault.[21] Ms Trounson's position in relation to categories two and three was thatevidence of violence and other extrinsic matters relating to the relationship betweenthe complainant and Mr Williams fell squarely within the scope of relationshipevidence admissible under s 43 of the Evidence Act as relationship propensityevidence. Referring to P(CA354/2017) v R, and Campbell-Joyce v R, Ms Trounsoncontended that this was propensity evidence which demonstrated the way in whichMr Williams and the complainant behaved towards one another, reflecting a highlydysfunctional relationship.11[22] While Ms Trounson conceded that certain aspects of the category threeevidence fell outside the scope of relationship propensity evidence (relating to gangconnections, previous offences and time in prison), they were ruled on by the trialJudge, who decided not to comment at the time to avoid giving them undue attention.Furthermore, some of the complainant's evidence did not amount to her taking thecase into her own hands but rather, as the Judge observed to the jury, were inextricablypart of the narrative.11 P(CA354/2017) v R [2018] NZCA 361 [P v R]; and Campbell-Joyce v R [2016] NZCA 192.[23] Ms Trounson noted that the defence had been warned in at least two pre-trialmemoranda there was a risk the complainant would exceed her brief. She thensubmitted that the majority of the responses complained of were made incross-examination and in reaction to being challenged by trial counsel. Ms Trounsongave three examples. First, a category two incident, where the complainant said theneighbours would often call the police on Mr Williams for beating her. Ms Trounsonpointed out that this answer was given in response to the complainant being pressedby defence counsel as to whether she willingly returned to Mr Williams.[24] Secondly, also in category two, the complainant said she had burn marks allover her body from when she refused to smoke methamphetamine. That evidence,said Ms Trounson, was given in response to questions in cross-examination allegingthat she was the aggressor in the relationship and that she was a methamphetamineuser. Her answers were essentially to say that she had no choice.[25] Thirdly, from category three, that the complainant said Mr Williams "fed"methamphetamine to his children. Ms Trounson pointed out that there was no disputethat the family were all methamphetamine users and that the youngest child was19 years old.[26] So, in Ms Trounson's submission, the complainant's evidence was in responseto a confrontational cross-examination and any prejudice was adequately covered bythe Judge's direction on prejudice and sympathy.Relationship evidence and this case[27] In Taniwha v R and P v R, the Supreme Court and this Court respectivelyendorsed the minority's view in Mahomed v R,12 where McGrath and WilliamYoung JJ noted that propensity evidence relating to interactions between a defendantand a victim may have an important explanatory value in terms of the background orrelationship between those involved.13 This includes situations where the events are12 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145.13 Taniwha v R [2016] NZSC 123, [2017] 1 NZLR 116 at [63]; and P v R, above n 11, at [32]–[33].so interconnected with the alleged offending that the jury will not be able to understandproperly what happened without hearing evidence about them.14[28] Furthermore, in P v R, this Court explained:15[32] It is recognised that in cases of domestic abuse, which can involvewide-ranging allegations, it can be helpful, and even necessary, for the jury tohave access to evidence that places the allegations in the context of the familydynamic. Evidence tendered to show the defendant's previous conducttowards the victim, to establish the context in which the offending occurredand to explain the nature of the relationship between the defendant and victim,is sometimes called relationship evidence.[29] The Court went on to say:16[33] Relationship evidence is not propensity evidence in the traditionalsense, despite falling within the scope of s 40 of the Evidence Act because itdoes not primarily depend on ideas of linkage and coincidence. It is led forthe purpose of informing the jury of the nature of the relationship. In Perkinsv R this Court explained that such evidence is: allowed in not because of the similarity between what is alleged byway of background and the actual offending (although there aresimilarities) but rather because otherwise the complainant's evidenceas to the alleged offending which is the subject of charges will benecessarily incomplete and perhaps not comprehensible from thepoint of view of the jury.[34] The factors set out in s 43(3) will generally be of less significance indetermining the probative value of the evidence than it would be in caseswhere ideas about linkage and coincidence are relied on. It is generallyaccepted that there is little room for unfair prejudice in respect of relationshipevidence, as against evidence led for the purpose of coincidence reasoning,because "the wrongfulness of the defendant's conduct will usually be closelyconnected to the core elements of the case against [him or her]".[30] But this appeal does not really challenge the admissibility of relationshipevidence. Mr de Groot accepted that, in cases alleging family violence, relationshipevidence can legitimately be used as part of the background narrative of therelationship between the parties. In his submission, however, what happened in thiscase was unorthodox and unfair. It could not have been anticipated, he said, that in acase involving six charges, only one of them representative, that the complainant'sevidence would in fact make in excess of 50 allegations in addition to those covered14 Perkins v R [2011] NZCA 665 at [20].15 P v R, above n 11 (footnote omitted).16 Footnotes omitted.by the charges. This was not a case, in his submission, of there being simply someevidence given of background incidents.[31] These criticisms, on their face, suggest there was a real problem at the trial andthat the evidence exceeded by a large margin the case Mr Williams expected to face.However, we note that Mr de Groot was not trial counsel. This is not a criticism butit is important to examine the background to the trial and what Mr Williams knewabout the Crown case.What did the defence know prior to trial?(a) Crown call-over memoranda[32] In the trial call-over memoranda dated 3 April and 18 October 2019, the Crownprosecutor discussed the complainant's evidence. Relevantly, in the 3 April 2019memorandum, the Crown said:ChargesFor a number of reasons, the Crown has elected only to lay charges wherethere is corroborating evidence in support of the complainant's allegations (inparticular observed injuries). In her statements the complainant refers to anumber of other assaults which occurred during the same incidents. TheCrown intends to lead these matters from the complainant, on the basis that itwould be artificial to exclude them from her evidence.Drug referencesOn a number of occasions the complainant refers to both herself and thedefendant consuming illegal drugs. The Crown anticipates that this will be arelevant issue at trial, and therefore at this stage intends to lead this evidence.The complainant also refers to unrelated criminal offending by the defendant,and her belief that the defendant's family have gang connections. The Crowndoes not intend to lead this evidence.[33] In the second trial call-over memorandum dated 18 October 2019, the Crownrepeated those comments and said:4.2 The Crown does not intend to play the complainant's evidentialinterview at trial, due to its discursive nature. The Crown attaches abrief of evidence indicating the matters that the Crown intends to leadfrom the complainant.(Emphasis in original.)[34] There is nothing before us to suggest there was any pre-trial challenge to theCrown's approach.(b) The complainant's brief of evidence[35] The complainant's brief of evidence incorporated her two written statements,dated 19 June and 9 August 2018.[36] The complainant's 19 June written statement gave an account of the night of19 May 2018, involving the incident when Mr Williams dislocated the complainant'sknee and assaulted her, giving rise to the first two charges (male assaults female andinjuring with intent to injure).[37] The complainant said she woke Mr Williams at about 11.00 pm and "he juststarted smashing me around". He punched her to the right side of her jaw and thengot on top of her on the bed, punching her in the head. He grabbed her ponytail andflicked it round her head like a whiplash, hit her in the mouth and broke her dentalplate.[38] While Mr Williams was still on top of the complainant, he strangled her bypressing down on her voice box with his thumbs, threatening to kill her. She noted atthat point in the statement that she "got hidings every day". When she was on theground, he put her left leg in a position similar to a headlock and twisted it until itmade a noise. The pain caused her to scream. He then picked her up by her shouldersand threw her on the bed. He began to strangle her again, as well as punching her.He told her she was going to die. He then carried her out of the motel and threw herunder a bush. She was taken back to the motel room. When she tried to call the policeusing her phone, Mr Williams grabbed it and squeezed her hand so hard he sprainedher right thumb. When she tried to escape the following morning, Mr Williams threwstones at her good leg, trying to stop her moving.[39] Some matters were deleted from that statement. For example, reference toMr Williams being in prison, him not allowing her to talk to anyone, making herurinate into a container, never leaving her alone and references to drug use.[40] The complainant's second statement dated 9 August concerned the sameincident but with some additional information, for example that Mr Williams made hersit on a chair in the shower while he punched her in the head continuously, that helocked her in the toilet and that he threatened to break her other leg. Aspects of thestatement which were deleted were that:(a) Mr Williams' mother made her plead guilty to charges involvingoffending by Mr Williams to avoid him going to jail;(b) Mr Williams' parents had arrived at the hospital in Black PowerT-shirts;(c) Mr Williams had broken her ribs in the past;(d) Mr Williams hit her with her crutches;(e) Mr Williams' use of pornography;(f) Mr Williams put her uninjured leg into a lock and threatened to breakit (although as noted above, a more general threat to break thecomplainant's uninjured leg was retained in the statement);(g) Mr Williams choked her;(h) Mr Williams hit her with a can of alcohol; and(i) Mr Williams shoplifted.[41] In respect of charge three and the events of 12 July 2018, the complainant'sbrief relevantly recorded that, when she and Mr Williams were in the car, she wascrying and he was "punching my head in". He would not let her eat but made herdrink something which "tasted like shit" and made her feel sick. Mr Williams keptlooking at the drink and laughing, "saying something about Toilet Duck or Janola".He told her he was going to end her life that night and that he was in love with hisson's partner. Mr Williams then "forearmed" the complainant in the mouth and beganto strangle her. He suffocated her and then she was "out". She woke up in the boot ofhis car and he dragged her out and threw her into the passenger side. When stoppedby the police, he faked a heart attack.[42] In respect of charges 4, 5 and 6, the complainant's brief recorded that on23 July, Mr Williams punched the complainant in the back of the head, slammed heronto a chair, trampled on her toes and kicked her in the knee.[43] On 24 July, the complainant got "the worst as hiding" and the choking incidentwas "the worst one ever". She said she was "strangled and strangled" and it felt likehe was trying to kill her. He wrapped the charging cord around her neck and said hewas going to make it look like she hung herself. Mr Williams put her into a headlockand suffocated her with pillow. He trampled on her neck. The "hiding" went on forabout nine hours and she thought she was going to die.[44] On 25 July, Mr Williams threw the complainant onto the bed, smashed her intothe wall and strangled her again. At one stage she was knocked out. He put her in achoke hold and caused her to lose consciousness. She woke up naked and heard talkabout glass. As he raped her, Mr Williams was looking at photographs of his son'spartner. After the rape, Mr Williams continued to assault the complainant, punchingher in the stomach and putting her in a headlock.(c) Charge list[45] The amended charge list dated 26 November 2019 recorded the following:17(a) Charge 1, 19 May 2018: Male assaults female. Particulars: punch(es)to her head.(b) Charge 2, 19 May 2018: Injuring with intent to injure. Particulars:injury to her left knee.17 We note that charge 3 was originally a representative charge but this was amended following alegal discussion between counsel and the trial Judge on 26 November 2020.(c) Charge 3, 12 July 2018: Male assaults female. Particulars: bruises tohead observed by Detective Hearn on 13 July 2018.(d) Charge 4, 23 July 2018: Male assaults female. Particulars: punchingher.(e) Charge 5, between 24 and 26 July 2018: Assault with intent to injure(representative). Particulars: choking her.(f) Charge 6, 26 July 2018: Sexual violation by rape.(d) Summary of facts[46] The Crown produced a summary of facts described as the "TCM version"which we interpret as being the latest summary of facts provided to the Court for thepurposes of the trial call-over. In relation to the charges, the allegations (in summary)were:(a) Male assaults female – punches to the head: during the course of theevening of 19 May 2018, Mr Williams punched the complainantrepeatedly to the head.(b) Injuring with intent to injure: at some stage during that eveningMr Williams twisted the complainant's leg with such force that it madea loud clicking noise. She woke early the next morning and left themotel room. Mr Williams caught up with her and they travelledtogether to the accident and emergency unit. After being seen by staff,she was taken to Middlemore Hospital under a false name to avoidMr Williams being able to contact her. Doctors noted the followinginjuries:(i) likely dislocation and relocation of left knee;(ii) multiple contusions to her face, including a split and swollenleft lower lip; and(iii) multiple areas of tenderness and bruising over the rest of herbody.Social workers placed the complainant into a motel following herdischarge. Mr Williams located the complainant and they left the moteltogether.On 17 June 2018, the police stopped Mr Williams' vehicle. He wasarrested and she was taken to Women's Refuge in Kaitaia. Shesubsequently returned to Auckland and stayed with Mr Williams.(c) Male assaults female: on 12 July Mr Williams assaulted thecomplainant, causing various bruises and abrasions. Their car wasstopped by police that same day and Mr Williams was arrested inrelation to outstanding warrants. The complainant was taken to hospitalon 13 July 2018 and her injuries were noted by the police officerpresent as:(i) bruising to the right side of her forehead above the brow;(ii) bruising to her left and mid-forehead;(iii) welt marks to her left collar bone;(iv) slight bruising to the right upper side of her neck; and(v) bruises to both upper forearms.The complainant returned to Women's Refuge in Kaitaia but lateragreed to return to Auckland with Mr Williams' son.(d) Male assaults female: on 23 July 2018, Mr Williams became angrywhen he heard the complainant had been speaking to another man. Hepunched her in the back of her head, slammed her onto a chair andtrampled on her toes.(e) Assault with intent to injure (representative) (choking incidents on24 and 25 July 2018).On 24 July 2018, Mr Williams told the complainant, "I'm gonna makeit look like you hung yourself" and wrapped a charging cord around herneck to strangle her. Over the next few hours, he placed her into aheadlock on a number of occasions, causing her to vomit and froth atthe mouth.On the evening of 25 July 2018, Mr Williams told the complainant togo to bed. When she refused, he threw her onto the bed, "upper cut"her mouth, causing her to bleed, got on top of her and strangled her,saying, "fuck, go to sleep cunt" and, "I'll fucking kill you, I'll fuckingkill you". He put the complainant into a carotid hold. She tapped hisarm to try and get him to stop. He did not. She lost consciousness.(f) Sexual violation by rape: when the complainant regainedconsciousness, she found she was naked on the bed. Mr Williamsmoved on top of her and raped her. She scratched his neck and toldhim to get off her but he continued.The police arrived at the address and arrested Mr Williams. A doctorexamined the complainant and noted she had:(i) a bruised cervix;(ii) fresh blood in her upper vagina;(iii) abrasions and linear marks on her neck; and(iv) multiple tender bruises on her face, arms and legs.Mr Williams was observed to have scratches on his neck when he wasarrested.(e) Observations on pre-trial approach[47] It is clear, therefore, that the complainant's brief of evidence and her twowritten statements included a wide range of allegations. The defence knew well inadvance of the trial that a number of the allegations in all three categories would beled in the complainant's evidence-in-chief. In respect of charge 1, all of the unchargedallegations were specifically mentioned in the complainant's two written statements.This included Mr Williams locking the complainant in the shower while smokingmethamphetamine, suffocating and strangling the complainant, yanking her ponytailand whiplashing her neck, giving her a "hiding" each night, and throwing stones at herwhile she was trying to leave the motel. The same applies to the uncharged categoryone allegations relating to the five other charges, with certain limited exceptions whichwe discuss at [59] below.[48] We also observe that the representative charge of assault with intent to injurerelated to Mr Williams choking the complainant between 24 and 26 July 2018.References to choking and strangulation over this period were properly admissible asevidence of the representative charge alleging choking.[49] Therefore, we do not agree with Mr de Groot that much of the complainant'sevidence in relation to these uncharged allegations was "almost entirely unsignalledin the Crown's statements". In fact, in his table that helpfully set out all of theuncharged allegations in categories one, two and three, Mr de Groot identified wherein the written statements almost every uncharged allegation was made.During the trial[50] During the complainant's evidence-in-chief, trial counsel raised a concern withthe Judge about her reference to two aspects of prejudicial bad character evidence.The complainant had described her ten-year relationship with Mr Williams ascontinuous apart from the time he spent in jail. Then, in her narrative of whathappened when she was in hospital for her injured knee, she said that Mr Williams'mother and father attended hospital wearing clothing which identified them as beingconnected to Black Power. The complainant said it was their intimidating behaviourwhich led to accident and emergency staff contacting police.[51] The Judge's bench note recorded that the Crown prosecutor told him that thecomplainant had been spoken to before the trial about the need to avoid prejudicialmaterial, saying her utterances were "completely spontaneous". The Judge recordedthat he had considered whether to say anything to the jury at that stage. He decidednot to, in order to avoid highlighting the evidence.[52] He made this decision because the references were fleeting and the jury alreadyknew Mr Williams had been dealt with by the police a number of times over thecharged period. This was relevant to setting the timeline as to when various policeofficers had noted the complainant's injuries and the defence had made it known thatit intended to cross-examine the complainant about the occasions Mr Williams hadbeen arrested between May and July 2018.[53] The Judge noted that the defence case was that Mr Williams and thecomplainant had been charged with dishonesty offending and his arrest was simplybecause he was in breach of a bail condition. He held that any resulting prejudicewould also adversely affect the complainant. And finally, he observed that referenceto Mr Williams' parents being associated with Black Power did not mean that hehimself was a member of the same gang. The Judge recorded:[8] Mr Winter is content for me to address the jury about the defendant'sjail time and his parents being dressed in gang regalia during my summing up.I am prepared to do this.[9] Mr Rhodes has undertaken to speak to the complainant again andreinforce to her the importance of not making any further references to thedefendant spending time in jail or being connected in any way to a gang.[54] So, while trial counsel did raise a concern during the complainant's evidence,it was in respect of these two issues only and it was in respect of these issues that theCrown prosecutor had spoken to her.Discussion[55] Trial counsel did not apply for a mistrial. We expect this was because much ofthe evidence now in dispute had been heralded pre-trial or was given by thecomplainant in her answers to cross-examination. Much of the evidence wasconsistent with the way in which both the Crown and the defence anticipated the trialwould be run.[56] That is not, however, the end of the matter. The issue is whether thecomplainant's evidence exceeded, by an unfairly prejudicial extent, what couldproperly be characterised as relationship evidence or evidence the complainant couldreasonably have been expected to give in response to a robust cross-examination. Didshe "go rogue" or was she needled into giving the responses which, given thewide-ranging nature of the allegations in her pre-trial statements, should have beenanticipated by defence counsel?[57] Most of the allegations under categories one and two were in our view eitherrelated to the context of the charges, relationship evidence (such as evidence ofmanipulation and past abuse), allegations the defence was aware of before the trial orjustified responses by the complainant to a confrontational cross-examination.The cross-examination focused on the extent of the complainant's methamphetamineuse and whether she was acting on threats to have Mr Williams "locked up for the restof his life", as the defence suggested she had achieved in relation to a former partner.The complainant was challenged as to whether she was in fact the aggressor,particularly when "coming down" from methamphetamine use.[58] However, the following allegations in all three categories were unheralded inthe complainant's brief and arguably outside the scope of the questions put to her.[59] The unheralded evidence that fell into category one (additional violence duringthe charged incidents) was:(a) In evidence-in-chief when discussing charge 4 (male assaults female),the complainant said Mr Williams tried to rip her hair out, whiplashedher head,18 hit her with a phone charger and hit her with a six/four-wayplug.18 She had made a similar allegation in respect of the events which resulted in charges 1 and 2.(b) In evidence-in-chief when discussing charge 5 (assault with intent toinjure), the complainant said that Mr Williams sprayed silicon spray ina small bedroom and locked her inside, saying, "by the time I comeback out you should be blind". She also said Mr Williams smashed asmall television over her head.(c) In evidence-in-chief when discussing charge 6 (sexual violation byrape), the complainant could be taken, obscurely, to say she wasviolated with a lightbulb and, even more obscurely, to say incross-examination that she was anally violated.[60] Except where specified, all the allegations next discussed in categories two andthree were made during the complainant's cross-examination.[61] In relation to category two allegations (violence unrelated to the chargedincidents), the complainant said:(a) Mr Williams' mother dealt methamphetamine and forced her andMr Williams to steal to pay for it. If she refused, Mr Williams and hismother would beat her.(b) She had burn marks all over her body from when she refused to smokemethamphetamine.(c) Mr Williams had previously broken all of her fingers.(d) Mr Williams drugged his son with sleeping tablets so that he could havesex with his son's partner, forcing the complainant to watch and hittingher in the process.(e) In evidence-in-chief, that Mr Williams forced something under herfingernail.[62] In relation to category three allegations (unrelated offending/bad characterevidence), the complainant said:(a) Mr Williams locked her in a room at her uncle's house for several days;(b) Mr Williams' family had gathered to "smash" her because she hadinformed the police of Mr Williams' whereabouts;(c) Mr Williams fed methamphetamine to his children;(d) Mr Williams gave methamphetamine to prostitutes;(e) Mr Williams and his mother stole her bank card and fraudulentlycollected her benefit for ten years;(f) Mr Williams took her medication from her and sold some of herprescription Tramadol to his mother;(g) Mr Williams threatened her life and attempted to kill her and herchildren, who were in a CYF facility; and(h) Mr Williams and his family had kidnapped her daughter in the past.[63] In our view, although the complainant's evidence did go beyond the scope ofher brief of evidence, we do not consider that the evidence she gave was so prejudicialthat we would have no option but to condemn the trial as unfair. We now explain.[64] As discussed above, in cases involving an abusive relationship which has lastedover a lengthy period, evidence of the underlying dynamics is relevant to explain thecontext in which the alleged incidents occurred, and the effect of them.19In H (CA227/2018) v R, this Court cautioned against the imposition of "artificialrestrictions" unfairly limiting what a complainant could or could not refer to, stressingthat a jury must be entitled to know the "dynamics of the household", or otherwise thecase would have an "air of unreality".2019 Perkins v R, above n 14, at [21].20 H (CA227/2018) v R [2018] NZCA 266 at [19].[65] That is not to say that all relationship evidence should or could be admissible.Ultimately the assessment still comes down to a balance between probative value andprejudicial effect. However, in these circumstances, we consider that the categoriesone and two allegations reflected the context of the relationship, particularlyMr Williams' controlling nature and the sustained nature of the abuse. As this Courthas very recently noted in a case also involving physical and sexual violence againsta former partner, complainants may often be vulnerable witnesses who may experienceheightened emotion that makes it difficult to respond to questions and may lead toquestions being answered incompletely or not at all.21[66] It is clear that the complainant in this case was a particularly damagedindividual, suffering the effects of prolonged methamphetamine use and familyviolence. Although the Crown did not spell this out in its pre-trial memoranda, wetake it this was the reason the Crown decided to lay charges only where there wascorroborating evidence in support of the complainant's allegations, in particularobserved injuries. Put simply, it is clear from reading the transcript that the prospectsof controlling or limiting the complainant's evidence were slim. That was obvious toofrom her three pre-trial statements. It would be naive to think that it would be possibleto control her narrative and in many ways this played into the defence hands andenabled it to defend the allegations in the way it did, as we discuss at [81].[67] It is also true that a number of the allegations complained of were very fleetingcomments only, and indeed we had to read the transcript carefully to pick up some ofthe references. This is important in two ways. First, it may explain why there was nocomplaint about the references at the time or request to direct the jury on them andthereby draw further attention to them. Secondly, it reinforces the somewhat ramblingand chaotic way in which the complainant gave evidence.21 See H (CA715/2020) v R [2021] NZCA 400 at [51]. See also Elisabeth McDonald Rape Myths asBarriers to Fair Trial Process: Comparing adult rape trials with those in the Aotearoa SexualViolence Court Pilot (University of Canterbury, Christchurch, 2020) at 71 and 328. See also thediscussion of sexual violence complainants' experience with the justice system in New ZealandLaw Commission The Justice Response to Victims of Sexual Violence: Criminal Trials andAlternative Processes (NZLC R136, 2015) at [1.3] and [1.23]–[1.30].[68] At this point, it is worth discussing in more depth the case of Edmonds.22Mr Edmonds had been convicted at trial of offences relating to the physical and sexualabuse of his victim. He appealed his conviction on the basis that two pieces ofirrelevant and inadmissible evidence were put before the jury, resulting in amiscarriage of justice. During cross-examination, the victim inadvertently indicatedthat Mr Edwards had previously been in prison and inferred that he was a patched gangmember.[69] This Court dismissed the appeal, holding that there was no unfair prejudice toMr Edmonds as a result of the disclosure. It considered the victim's evidence to be a"spontaneous and natural response to a line of questioning", rather than a deliberatedisclosure made by her in an attempt to tarnish Mr Edmonds' reputation.23 The Courtalso observed that it would be more likely to find that a miscarriage of justice hadoccurred if a witness had unilaterally, or at the invitation of the Crown, taken mattersinto his or her own hands and introduced damaging and irrelevant material thataffected the fairness of the trial.24 In making that observation, the Court citedThompson v R, where the complainant in a sexual and physical family violence casehad alluded to the defendant's time in prison, gang association and drug use.25 In thatcase, the Court observed:26[19] This is not a case in which a prosecution witness has for her ownpurposes gratuitously introduced significant illegitimately prejudicialmaterial. It is readily distinguishable from those cited by Mr King, R vMcLean (Colin) and Arthurton v R, in which highly prejudicial and irrelevantevidence was unexpectedly introduced by a prosecution witness, seeminglyfor the purpose of damaging an accused who was entitled to rely upon hisgood character. In McLean reference was made by the complainant to acomplaint of rape against the accused by his former wife of which he hadactually been acquitted. In Arthurton a police sergeant had been asked toconfirm, as was a fact, that the accused had no previous convictions and had,quite improperly, chosen to say that she could not really say and that she knewhe had been arrested and charged for a similar offence. In the present casethere was no misconduct of that kind by the complainant. Her answers weredirectly relevant to questions asked of her as part of the defence case whichchallenged her credibility, and obviously enough Mr Thompson was notrelying upon his own good character. It was not a situation in which the22 Edmonds v R, above n 10.23 At [25].24 At [24].25 Thompson v R [2006] NZSC 3, [2006] 2 NZLR 577.26 Footnotes omitted. See also R v McLean [2001] 3 NZLR 794 (CA); and Arthurton v R [2005]1 WLR 949 (PC).witness has taken matters into her own hands by introducing damaging andirrelevant material and has thereby affected the fairness of the trial so that theguilty verdict cannot be allowed to stand.[70] Although the complainant's allegations in the present case were significantlymore prejudicial than those in Edmonds, we consider that this is also not a case wherea witness has gratuitously introduced significant illegitimately prejudicial material forher own purposes. Critically, the relatively significant breadth of the complainant'sevidence was signalled to the defence in advance at trial call-over and again in theprosecution's opening submissions. The complainant did expand her allegations butthis must be considered in the context of our earlier observations about thecomplainant. Many of her statements were made in response to being needled orchallenged robustly in cross-examination. That was a risk the defence chose to takeand it was a risk of which the defence was effectively forewarned, both by theinformation provided pre-trial and by the way the complainant gave herevidence-in-chief.[71] This brings us to our next point — that the Judge's direction on prejudice andsympathy and his summing-up generally sufficiently dealt with the prejudicialevidence that was given by the complainant.[72] The Judge gave a prejudice and sympathy direction which covered referencesto Mr Williams and his family belonging to a gang, methamphetamine use andMr Williams' time in prison. In particular, the Judge said:[9] Some of the other evidence was led because it was inextricably woveninto the narrative which suited the Crown and the defence cases put beforeyou. For example, you have heard some evidence of the defendant and thecomplainant both using methamphetamine around the relevant period. Someother aspects of evidence were placed before you inadvertently. For example,when [the complainant] gave evidence that the defendant's parents visited herat the A&E on 20 May wearing Black Power t-shirts visible to all in the A&Ewaiting room. Whether the evidence which I have referred to was placedbefore you intentionally or because a witness simply misspoke, it is importantthat you put aside any ill feelings or prejudice arising from references to jail,gangs, being charged by police, methamphetamine use and the like. Ignorethem. It is important though that you focus on the task in hand.[10] This is not a case about whether the defendant is a nice guy. He is notguilty because he has done some bad things in the past or, like the complainant,used methamphetamine occasionally. He is not guilty because he has familymembers who wore clothing associating them to a gang or perhaps lives in away that meets with your disapproval. Therefore, you cannot use any of thesematters as a source of prejudice and permit prejudice to be the basis for anydecision you make. That would be both inappropriate and wrong.[11] Recall that I said to you at the outset. When you are considering yourverdicts, you are judges, and judges can never allow their decisions to beinfluenced by feelings of prejudice against or sympathy for any defendant,complainant or anyone else who might be connected with the case. You mustnot decide he is guilty because you think he is the type of person who mightcommit these offences. What you are required to do is to assess whether theevidence proves the defendant's guilt to the required standard.[73] We must say that, given the wide-ranging scope of the complainant's evidence,the Judge could have given a more detailed direction regarding the additionalunheralded allegations in order to remedy any prejudice against Mr Williams arisingfrom that evidence. On the other hand, as Ms Trounson said, the Judge may havewanted to avoid giving those allegations undue attention. As we have noted above,many of the complainant's additional allegations were made fleetingly or wererelatively unintelligible. The Supreme Court has acknowledged that where potentiallyprejudicial evidence is inadvertently brought up by a witness, a decision must be madewhether to instruct the jury to disregard it (which draws the jury's attention to thematerial) or simply to ignore it, on the basis that, from the jury's perspective, it is likelyto be lost in the "noise" of the trial.27[74] Ultimately, in his summing-up the Judge directed the jury to focus on the taskat hand, saying that the background evidence had been admitted for a limited purpose.In K (CA445/2018) v R (which concerned an appeal relating to the admission ofrelationship evidence where the appellant had sexually abused his partner's child), thisCourt held that the Judge should have given a specific direction on the relationshipevidence,28 but that his failure to do so did not result in an unfair trial.29The summing-up was structured in a way that focused the jury's attention on thecomplainant's evidence regarding the appellant's alleged sexual conduct and not anyof his other alleged conduct.30 Furthermore, the summing-up centred on a question27 Kohai v R [2015] NZSC 36, [2015] 1 NZLR 833 at [49].28 This evidence was given by the complainant, her mother, her older sister and her step-sister aboutthe family dynamics of the household, and included descriptions of the appellant as a dominatingand controlling figure prone to angry outbursts, abusive language and, on occasion, violence.29 K (CA445/2018) v R [2019] NZCA 264 at [29]–[32].30 At [31].trail which the Judge had tailored to the specific facts and which he went throughquestion by question, referring to the relevant evidence from the complainant.31[75] We consider that the circumstances are similar here. A specific direction onthe uncharged allegations of violence would have been desirable but, after warning thejury to focus on the task at hand, the Judge restricted his summing-up to the sixcharges Mr Williams faced, and went step-by-step through the question trail relatingto those charges. He fairly put the defence case in respect of each of the allegationsand made some important observations as he took the jury through the charges as setout in the question trail. For example, in respect of charge three, male assaults female,he said:[73] Now, you might recall the fact that when the complainant alleged thedefendant assaulted her in several different ways leading up to his arrest on12 July and leaving her with a constellation of injuries noted by DetectiveHearn the following day at the North Shore Hospital, she recorded severalalleged assaults. [The complainant's] evidence as to how she came by herinjuries noted on 12 July was that the defendant strangled her, grabbed her bythe arms and forcibly placed her inside the boot of his car, punched her to thehead, and then struck her in the head with a full can of Dark Horse pre-mixedbourbon and cola. Now, be that as it may, the Crown has asked you to focuson one singular aspect of the alleged assault, which is the defendant's strike tothe complainant's head which left her with bruising around or under herhairline. Now, whether she was struck by a can held in the defendant's handor his hand alone in the form of a closed-fisted punch, it is the strike which isthe alleged assault here. That is the assault which has been put forward, hencewhy the question has been framed in the way that it has, and you will need tobe sure that this assault did occur.[76] The final section of the Judge's summing-up involved his summarising therespective Crown and defence cases. In respect of the complainant, the Judgesummarised the Crown's case as follows:[103] Focusing on the peripheral issues will not be helpful. Instead, focuson what really matters, the elements of the charge defending, and use yourcollective common sense and worldly experience when doing so. The Crowntold you that [the complainant] is a credible and reliable witness. She wasgenuine, sometimes brutally honest, reasonable and constantly accessing real,even if sometimes imperfect, memories. No one has a perfect memory.Neither was the complainant herself perfect, but she never pretended to be.She accepted using drugs in the past, carrying out acts of theft and dishonestyand leading a life many, if not all, of you would disapprove of. She told youall of this. That should tell you something about her veracity.31 At [31].[77] The defence case was summarised as follows:[111] Mr Winter for the defence submitted to you that the central issue inthe trial is the complainant's credibility. The defence case is that she is not acredible witness. Her behaviour, perceptions and ultimately allegations needto be assessed in the context of her own addiction issues. The relationshipbetween the defendant and the complainant was an unhealthy one. Much ofthis related to the shared drug habit that they had. Both living on the edge ofsociety and both of them giving as good as they got. The complainant's useof methamphetamine, alcohol, tramadol, other prescription medication andcannabis means that you must treat her evidence with real caution because theuse of any one of these substances can make a witness extremely unreliable,the combination of them even more so. It can give them a warped sense ofperception.[112] The complainant only ever cried abuse when it suited her and moreoften than not when dealing with police to avoid being arrested. [Thecomplainant] was an angry, violent and jealous person who had an unhealth[y]obsession with the notion that the defendant had or wanted a sexualrelationship with [his son's partner]. There is no evidence of this fact apartfrom her own word and her belief can only be described as irrational anddeluded. It is this jealousy which is at the heart of the complainant's lies aboutthe defendant. This jealously which led her to get the defendant arrested,charged with rape and dealt with like her former domestic partner. As for theallegations of being a victim of domestic violence, she simply hinted at this topolice to escape being arrested during random vehicle stops.[113] The charges are separate, Mr Winter told you, and need to beconsidered separately, but the complainant's credibility or lack thereof is whatties everything together or unties everything. That is the real problem withthe Crown case because much turns solely on her uncorroborated account.[78] The Judge repeated the defence submission that the claims of abuse and rapewere outlandish, imagined and far-fetched.[79] Relatedly, some deference should be given to the trial Judge. As this Courtobserved in Pulemoana v R, an appellate court will not lightly interfere with a trialjudge's discretion when dealing with a jury which has received in evidence illegitimateprejudicial material. The exercise of that discretion depends on the nature of what wasadmitted into evidence, the circumstances in which it was admitted and what, in thelight of the circumstances viewed as a whole, is the correct course.32[80] Here, the Judge exercised his discretion by giving a direction to the jury to stayfocused on the task at hand and discussing the allegations as part of the contextual32 Pulemoana v R [2019] NZCA 293, (2019) 29 CRNZ 235 at [50], citing Thompson v R, above n25, at [16].background narrative. As this Court and the Supreme Court have observed on manyoccasions, appellate courts need to take a contextual approach to considering how trialjudges exercise their discretion in dealing with unexpected prejudicial evidence —that is, the approach discussed in the preceding paragraph.33[81] Finally, there is nothing to suggest trial counsel took issue with the evidence.If anything, he appeared to be quite willing to incorporate the complainant's wideranging allegations into his closing address to the jury, specifically referring to anumber of the "new" allegations and describing the complainant's allegations of abusesounding like a "Japanese Prisoner of War camp" or a "dungeon torture movie" in anattempt to undermine her credibility.[82] As this Court has noted, failure of counsel to object during the trial can bedispositive on appeal, where it indicates that a ground of appeal was less problematicat trial than the appellate record might suggest.34 Here, we are satisfied that theabsence of any protest from trial counsel, coupled with the Judge's direction and hisexercise of discretion during the trial, confirms our view that this was not an unfairtrial.[83] For these reasons, we dismiss this ground of appeal.Other mattersVeracity of defence witness[84] The partner of Mr Williams' adult son was called by the defence and gaveevidence favourable to Mr Williams. However, during her evidence the policediscovered that, following her having previously made two contradictory statementsto the police about a family violence incident, she had been charged with making afalse statement, although the charge was later withdrawn.33 Pulemoana v R, above n 32, at [50]; Thompson v R, above n 25, at [16]; Edmonds v R, above n 10,at [23]–[24]. See also R v McLean, above n 26, at [14], and Robin Palmer "Case Note: Counter-Intuitive Sexual Abuse Evidence, Emotive Language and Inadvertently-Elicited PotentiallyPrejudicial Evidence: Kohai v R [2015] NZSC 36 and DH v R [2015] NZSC 35" [2016] NZCLR48 at 56–57.34 See T (CA561/14) v R [2016] NZCA 235, (2016) 28 CRNZ 17 at [59].[85] According to Mr de Groot, that evidence was inadmissible as it was notsubstantially helpful to the jury in assessing the witness' veracity. Furthermore, theevidence had an unfairly prejudicial effect on the proceeding, underminingMr Williams' right to run an effective defence, and should have been ruledinadmissible under s 8.[86] Mr de Groot also submitted that the evidence was adduced in breach of theCriminal Disclosure Act 2008, as the veracity evidence was not properly disclosed.[87] In response, Ms Trounson submitted that the evidence of the witness' previousstatements was substantially helpful because it directly called into question hertruthfulness in a serious criminal prosecution in a family violence context, as thiscase was.[88] A party may not offer evidence in a civil or criminal proceeding about aperson's veracity unless the evidence is substantially helpful in assessing that person'sveracity.35 The evidence that the witness had previously given two differentstatements to the police in relation to a family violence incident was substantiallyhelpful and properly admissible. It did not have an unfairly prejudicial effect on theproceeding. She was a defence witness and, like all witnesses, susceptible to achallenge to her veracity if there were grounds to do so. The Crown made the Courtaware of the evidence once the police advised them about the earlier charge followingtheir enquiries when she was called as a defence witness.[89] There is no merit in this ground of appeal.Failure to call relevant witnesses[90] Neither of the Crown's two trial call-over memoranda indicated that the Crownwould call any of the three witnesses Mr Williams says the Crown should have called.The defence could have applied for an order under s 113 of the Criminal ProcedureAct that the Crown call the witnesses or called them as defence witnesses.35 Evidence Act 2006, s 37(1).[91] There is no merit in this ground of appeal.Trial Judge's directions[92] In Mr de Groot's submission, the Judge went too far in giving what waseffectively counter-intuitive evidence about how a victim of family violence mightbehave when there was neither a statutory nor evidential basis to do so. The Judgetold the jury they should not assume that a victim of family violence would promptlycomplain to the police or leave the relationship, and there was no typical or normalpattern of behaviour which is to be expected in response to family violence.[93] Ms Trounson's answer was that the directions responded to the defence caseand addressed a live issue at trial, as Mr Williams had leveraged misapprehensionsabout the behaviour of victims of family violence in his defence. Furthermore, theJudge explained why he was making the directions. The jury was told that commonsense, while normally an underpinning of the jury's deliberations, had somelimitations in respect of the behaviour of complainants in family violence cases.[94] In our view, the Judge's directions were fair and fell within the parametersdiscussed in Satini v R.36 In that case, the Court considered a prosecutor's commentthat it was not unknown for victims of violence to suffer in silence or return to a violentrelationship. There had been no expert evidence to that effect at the trial. This Courtconsidered there was no issue: the comment reflected common sense and was probablynot news to the jury.37[95] We consider the directions were sufficiently generic, accurate and important.They were not linked to the complainant's circumstances and did not suggest that theabsence of complaint was evidence of abuse. The Judge directed the jury that thecomplainant's behaviour in not leaving Mr Williams and not complaining were mattersfor them to assess.36 Satini v R [2014] NZCA 413.37 At [11]–[13].SENTENCE APPEALThe sentencing decision[96] After setting out the relevant facts of the offending, the Judge acknowledgedthe effect of the offending on the complainant. She described her life withMr Williams as one made up largely of drug abuse, violence and crippling fear, bothemotionally and physically. Her knee injury meant that she was likely to walk with alimp for the remainder of her life and she struggles daily with anxiety, ADHD andpost-traumatic stress disorder. She feels isolated from many of her former friends andfamily.38[97] The Judge took the rape as the lead charge. He identified the aggravatingfactors as the harm caused to the complainant, her vulnerability, actual physicalviolence, and humiliation.39 He considered the offending fell just below the midpointof band two in R v AM (seven to 13 years).40 Accordingly, the Judge adopted a startingpoint of nine years.41 The starting point included the offending covered by charge 5,the representative charge of assault with intent to injure by choking. The Judgeconsidered that this violent offending was approximate or directly linked to the sexualoffending and therefore took it into account when setting the starting point for rape.42[98] The Judge then turned to analyse the violent offending covered by charges oneto four (three charges of male assaults female and one of injuring with intent to injurebetween 19 May and 23 July 2018).[99] In respect of the charge of injuring the complainant's knee, the Judge placedthe offending in band two of Nuku v R, given the aggravating factors of attacking thehead of a vulnerable victim and inflicting a serious injury on her knee.43 The Judgeconsidered that charge alone merited a starting point of 18 months. To reflect the otherviolence charges and totality, he uplifted the starting point by two years.38 Sentencing notes, above n 2, at [12].39 At [20].40 At [24], citing R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.41 At [24].42 At [25].43 At [27], referring to Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.He considered that reflected the overall culpability of the additional violencecharges.44[100] Turning to mitigating factors, the Judge took into account the evidence ofMr Williams' genuine and sincere remorse. For that, a discount of six months wasmade.45 A further discount of four months was granted for rehabilitative efforts whilein custody.46 A discount of 12 months was granted for personal circumstancesidentified in the s 27 cultural report. The Judge said:[30] The issue which I have wrestled with is what further discountingshould be applied for your personal circumstances as they are set out in thepre-sentence report and s 27 cultural report. It is clear that you had a difficultupbringing. It was an early childhood punctuated with violence, drugs,inadequate care and supervision which in turn led to your own affiliation withorganised crime. But the same could be said for many other people who donot go on to offend in a similar way to you. Your brother, who you refer to inthe pre-sentence report, is a case in point. Nonetheless, I accept thesubmissions made by your counsel that there is a causal connection betweenyour upbringing and abuse which in turn led to the present offending by you.Accordingly, there should be some discount to take into account these personalcircumstances. [101] The result was a sentence of nine years and two months' imprisonment for rape,with one year's imprisonment concurrent imprisonment on the other charges.47Mr Williams' appeal[102] Mr Williams appeals his sentence on two grounds: that the starting point wastoo high and that an inadequate discount was given for the s 27 report.[103] On the starting point, Mr de Groot accepted that the offending fell into bandtwo of R v AM but submitted it ought to have been placed lower within the band ratherthan "just below the midpoint" as the Judge found.48 On the inadequate discount, hesubmitted that, given the causal nexus between Mr Williams' upbringing and hisoffending, the adjustment ought to have been 20 per cent. In his submission, the44 At [27].45 At [28].46 At [29].47 At [31].48 At [24].sentence should be substituted by an end sentence of six years and eleven months'imprisonment.[104] In response, the Crown contended the nine-year starting point for the rape wasavailable to the sentencing Judge as the offending was appropriately characterised asfalling into band two offending for which starting points of seven to 13 years areavailable.[105] On the matter of the s 27 cultural report, the Crown submission was that, giventhe very serious nature of Mr Williams' offending, denunciation and protection of thepublic should be emphasised as purposes of sentencing. The Crown referred toArona v R, where the Court of Appeal observed discounts for deprivation will bereduced or even eliminated in cases of serious sexual violence where these purposesare to the fore.49What was the appropriate starting point?[106] Band two offending under R v AM was characterised by this Court as follows:50[98] By comparison with rape band one, this band is appropriate for a scaleof offending and levels of violence and premeditation which are, in relativeterms, moderate. This band covers offending involving a vulnerable victim,or an offender acting in concert with others or some additional violence. It isappropriate for cases which involve two or three of the factors increasingculpability to a moderate degree.[107] Cases which were at the lower end of band two variously involved violence,victim vulnerability, abuse of trust and an element of degradation.51 The cases thatfell at the higher end of band two had those same aggravating features but ofteninvolved a greater level of physical and sexual violence, and degradation and/orhumiliation.52[108] The Judge acknowledged that the nine-year starting point was relatively sternin the circumstances.53 The offending is arguably less serious in comparison to some49 Arona v R [2018] NZCA 427 at [61].50 R v AM (CA27/2009), above n 40.51 At [98].52 At [102].53 Sentencing notes, above n 2, at [24].other cases, such as Archer v R, where this Court found on appeal that a nine yearstarting point (in the middle of band two) was more appropriate for offending that wasarguably more serious than the present.54 That case involved the appellant offendingagainst his partner on one night resulting in convictions on two charges of sexualviolation by unlawful sexual connection (including the insertion of an object) and oneof rape.[109] The offending in this case is also arguably less serious than that in R v Dunick,where a starting point of eight years was upheld on appeal,55 and was identified asbeing at the lower end of band two in R v AM.56 The case was described by the Courtin R v AM as follows:57R v Dunick: O, male, and V, female, had been friends for about six weeks.V invited O to her house. The visit was preceded by text messages with somesexual content. On O's arrival, V rejected his advances. O removed V'sclothing before he digitally penetrated her, causing her pain, and thenpenetrated her with his penis. He made her kneel on the bed and againpenetrated her while slapping her buttocks. O made a number of derogatorysexual references to V. V eventually escaped.[110] The compelling difference in the present case is the extent of violence whichpreceded the rape and which was included in the nine-year starting point.The representative charge of assault with intent to injure, which carries a maximumpenalty of three years' imprisonment,58 related to some of that violence, being thechoking incidents which occurred over a period of three days. The complainant'sevidence was that she was subject to repeated bouts of choking or strangulation, andthat Mr Williams was "really trying" to stop her breathing. Immediately prior to therape, Mr Williams had wrapped a telephone charging cord around the complainant'sneck, restricting her breathing to the point she lost consciousness. He then raped her,saying, "fight me I'll fuckin' break your neck". The complainant was unconscious attimes during the rape. She suffered genital bruising and bleeding as a result, asconfirmed by the expert evidence. There is no doubt this was extremely seriousoffending over a prolonged period. A starting point of nine years' imprisonment54 Archer v R [2018] NZCA 331.55 R v Dunick [2008] NZCA 482.56 R v AM, above n 40, at [98].57 At [98] (footnote omitted).58 Crimes Act 1961, s 193. The offending pre-dated the introduction of the offence of strangulationor suffocation which carries a maximum penalty of seven years' imprisonment.cannot, in our view, be legitimately criticised, except to say it was generous in all thecircumstances.[111] Furthermore, we do not accept Mr de Groot's submission that an 18-monthuplift was sufficient to represent the violence that occurred in respect of the first fourcharges. If anything, the Judge was generous in imposing a two-year uplift only forthose four charges. We note the offending included a range of aggravating factors,such as extreme violence, serious injury, use of weapons, attacking the head andvulnerability of the victim.Were the discounts inadequate?[112] The s 27 report prepared for Mr Williams detailed his Māori and Cook Islandswhakapapa, and a number of risk factors which the report-writer identified as relevantto his offending, including:(a) Family/whānau disconnection – Mr Williams grew up with littleconnection to his biological father. His mother was in and out of prisonand gang affiliated.(b) Child Youth and Family Intervention – Mr Williams and his siblingswere taken into state care at an early age.(c) Exposure to drugs and alcohol at a young age – while Mr Williams wasliving with his mother and stepfather, he recalled a home environmentwhich included regular parties and exposure to drugs and alcohol.(d) Family violence (physical, verbal and psychological abuse by hismother) – Mr Williams recalled "countless beatings" he received as achild by his mother and stepfather, including with items such as a jug,cords and belts.(e) Absence of role models – Mr Williams had little connection to hisbiological father, was abused by his mother and stepfather, whointroduced him to gang life and methamphetamine use, and wasremoved from his whānau at a young age.(f) Poverty – Mr Williams recalled his whānau having no money forclothes and food, and their struggles in finding regular employment.(g) Urbanisation and lack of cultural connection – the report-writerdiscussed the intergenerational effect of colonisation resulting insystemic Māori deprivation. Mr Williams' impoverished childhood,disenfranchisement and disconnection from his whenua, hapū and iwireflected these impacts.(h) Exposure to gangs – Mr Williams' difficult early years, his early exitfrom the education system, as well as his disconnection between hiswhānau and whakapapa led him to join a gang (ultimately becomingthe president of a Black Power chapter).(i) Sexual abuse – Mr Williams said he had been abused by older childrenalso in state care, which he believed had affected his ability to engageand act appropriately in his relationships.[113] In the context of Mr Williams' difficult background, including the traumaticevents he appeared to have suffered as a child, his removal away from his whānau intostate care, and the intergenerational effects of colonisation and deprivation, we wouldconsider the 12-month discount (just over 10 per cent) was low, and bordering oninadequate. We do not endorse the Judge's reasoning that Mr Williams should notreceive a discount, or receive a relatively small discount only, because many otherpeople in similar situations (such as Mr Williams' brother) do not go on to offend inthe same way as he did.59 This Court has repeatedly endorsed the reasoning of theFull Court in Zhang v R, and as an extension to that, the reasoning of Williams andWhata JJ in R v Rakuraku and Solicitor-General v Heta respectively, which illustratethe importance of an overall assessment, taking into account social and culturaldislocation resulting from colonisation (which can result in poverty, alcohol and drug59 Sentencing notes, above n 2, at [30].abuse, unemployment, educational underachievement and violence) as part of thesentencing analysis.60[114] We note the Crown's observation that this Court has also suggested that, incases of serious sexual violence, cultural discounts may be reduced because of theneed for a greater emphasis on denunciation and accountability.61 However, theseriousness of the offence should not preclude a s 27 discount. The size of thatdiscount will ultimately be highly contextual, taking into account an overallassessment of the offender's cultural background, their offending, and the principlesof sentencing. As Mr de Groot noted, relatively large discounts have been given bythe senior courts in cases of serious offending.62[115] Here, a discount of 15 per cent would have been more appropriate.We acknowledge, however, that the Judge gave discrete discounts of six months forMr Williams' remorse and four months for his efforts to rehabilitate by attending somecourses while in custody. The Judge accepted Mr Williams was remorsefulnotwithstanding the comment in the pre-sentence report that, while Mr Williamsexpressed some remorse, he also tried to minimise his behaviour and shifted blame.And, of course, he put the complainant through the ordeal of the trial.[116] The question for us is whether there was an error in the sentence and a differentsentence should be imposed.63 While we have concluded that a greater discountshould have been given for s 27 factors, when the discount for personal mitigatingfactors is considered in the round, any deficiency is marginal at best. We have alreadyobserved that the starting point for the offending was generous. In thosecircumstances, we are not satisfied that a different sentence should be imposed and thesentence appeal is dismissed.60 See Carr v R [2020] NZCA 357 at [66]; Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at[159]–[162]; R v Rakuraku [2014] NZHC 3270 at [58]; and Solicitor-General v Heta [2018]NZHC 2453, [2019] 2 NZLR 241 at [50].61 Arona v R, above n 49, at [61].62 See for example R v Beattie [2019] NZHC 3108 at [66]; R v Tauroa [2020] NZHC 376; andR v Archer [2019] NZHC 3146.63 Criminal Procedure Act 2011, s 250.RESULT[117] The appeals against conviction and sentence are dismissed.Solicitors:Crown Law Office, Wellington for Respondent