W (CA722/2021) v R [2022] NZCA 442

W (CA722/2021) v R [2022] NZCA 442 [19 September 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA722/2021[2022] NZCA 442BETWEEN W (CA722/2021)AppellantAND THE KINGRespondentHearing: 15 June 2022Court: Courtney, Mander and Fitzgerald JJCounsel: S Brickell for AppellantE J Hoskin for RespondentJudgment: 19 September 2022 at 11.30 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is allowed.C The sentence of five years and six months' imprisonment is set aside andsubstituted with a sentence of four years and eight months' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] In 2015 X, then aged seven, was placed in foster care with Ms W. Theappellant, who is Ms W's son and was then aged 14, was also living in the house.1Sometime later, after X had been moved from Ms W's care, she alleged that theappellant had raped her while she was living with him and his mother.[2] In 2021, the appellant stood trial before a jury and Judge Harvey in theDistrict Court at Whangarei on the following charges:(a) charge 1 – sexual violation by rape between 14 September 2015 and19 May 2016, described as the "[f]irst occasion";(b) charge 2 – sexual violation by rape between 14 September 2015 and19 May 2016, described as the "[l]ast occasion"; and(c) charge 3 – sexual violation by rape between 14 September 2015 and19 May 2016, a representative charge described as "[o]ccasion(s) otherthan in [c]harges 1 and 2".[3] The appellant was convicted on charges 1 and 3. He was acquitted on charge2, which related to a party at Ms W's house at Easter 2016 (referred to during the trialas "the party rape").[4] The appellant appeals his convictions on the grounds that a miscarriage ofjustice occurred because:(a) Although the representative charge was correctly framed based on thecomplainant's evidential video interview (EVI), at the conclusion of theCrown case the evidence required it be split into two distinct charges.The failure to do so tainted both convictions.1 The appellant's name has not been used, despite it not being suppressed, because identifying himby name would risk breaching the complainant's statutory protections under ss 203 and 204 of theCriminal Procedure Act 2011 due to the nature of the offending and his relationship to thecomplainant. See H v R [2019] NZSC 69, [2019] 1 NZLR 675 at [54]–[58].(b) The Judge failed to direct the jury specifically in relation to the needfor unanimity on charge 3.[5] The appellant was sentenced to five and a half years' imprisonment.2 Heappeals his sentence on the ground that it is manifestly excessive as a result of theJudge taking too high a starting point and allowing too low a discount for youth.3Circumstances of the offending[6] The following was not in dispute. X came into Ms W's care inSeptember 2015. At that time, the household comprised Ms W, the appellant andMs W's then partner, Ms D.[7] X had been in foster care with another family and was known to havebehavioural issues, including sexualised behaviour. House rules were put in place tomanage this issue. Initially, the sleeping arrangements were that Ms W and Ms Dshared a bedroom and X and the appellant each had their own bedrooms.[8] On 27 November 2015 Ms W began working night shifts. X alleged that theoffending began the night of Ms W's first night shift.[9] In January or February 2016 the relationship between Ms W and Ms D ended.As a result, there were changes in the sleeping arrangements. The appellant moved tosleep in a sleepout on the property. Ms W continued to sleep in her bedroom with hernew partner, Ms H. Ms D moved into the room previously occupied by the appellantwith her new partner.[10] Ms W's last night shift was on 21 February 2016.[11] In May 2016 Oranga Tamariki moved X into foster care with another family.The reason was that Ms W's new partner was not approved as a foster carer.2 R v [W] [2021] NZDC 23402 [Sentencing notes].3 A further ground, that an inadequate discount was given for cultural factors, was not pursued.First and second grounds of appeal: failure to divide charge 3 and to direct onunanimityRelevant principles[12] Generally, a charge must relate to a single offence and contain sufficientparticulars to fully and fairly inform the defendant of the substance of the offencealleged.4 As was noted in Gamble v R, separate counts facilitate fairness in the conductof the trial by focusing attention on matters of fact and law which can and need to bedistinguished for the purposes of the different counts and enable each specificallegation to be tested separately.5[13] However, s 20 of the Criminal Procedure Act 2011 (CPA) permitsrepresentative charges in specified circumstances. Relevantly, s 20(1) provides that:(1) A charge may be representative if—(a) multiple offences of the same type are alleged; and(b) the offences are alleged to have been committed in similarcircumstances over a period of time; and(c) the nature and circumstances of the offences are such that thecomplainant cannot reasonably be expected to particularise datesor other details of the offences.[14] A "representative charge should not be filed under s 20(1) if the evidencesupporting that charge discloses identifiable, discrete instances of offending".6Where evidence that distinguishes instances of alleged offending arises for the firsttime at trial, the charge may be divided under s 21(1)(a) of the CPA:(1) The court may on the application of any party or on its own motion,in the interests of justice,—(a) order that any charge worded in the alternative, or that isrepresentative, be amended, or divided into 2 or morecharges [15] There will be no unfairness, however, if the charge is not divided and the juryis instead instructed to distinguish between the relevant acts alleged and reminded of4 Criminal Procedure Act 2011, s 17.5 Gamble v R [2012] NZCA 91 at [33].6 Renes v R [2021] NZCA 188 at [53]. See also R v Qiu [2007] NZSC 51, [2008] 1 NZLR 1 at [8].the need to be sure that each particular incident has occurred.7 This course requirescareful attention to the requirement of unanimity. Where discrete instances ofoffending can be identified there is a risk that the jury may be satisfied that someoffending has occurred but is not sure which instance has been proven. Alternatively,jurors may all be satisfied that an instance of offending has occurred but not be agreedas to which one. In Gamble v R this Court expressly referred to the statement in R vP that:8The result is that the verdict may not reflect a unanimous view that any oneparticular rape had occurred. In the circumstances of this case it is quitepossible that there were differing views as to the proof of each incident, but acommon view that one unspecified incident, not necessarily the same in theeyes of all jurors, had been established. It also referred to the statement by Elias CJ in R v Mead:9[14] A jury must be unanimous as to the essential ingredients of theoffence. [15] It is not necessary that jurors be in agreement about the evidence.They can arrive at the same point by different reasoning. But the essentialpoints upon which they must agree are not simply a conclusion based uponthe statutory criteria for the offence. The statutory elements will need to beanchored to the facts relied upon by the prosecution as the basis of liabilityand put in contention by the defence. The jury must be agreed upon the factualbasis on which they find the accused guilty Without such agreement thereis no common foundation for the verdict.[20] Where a number of specific incidents or transactions or courses ofconduct are included in the same count, there is a risk that all jurors will besatisfied of the proof of one, but not necessarily the same one. (citation omitted)The appellant's argument[16] The appellant says that by the end of the Crown case, charge 3 no longer metthe statutory criteria in s 20(1) for a representative charge. He says that charge 3should have been divided into two discrete charges and/or that the Judge should have7 Walker v R [2012] NZCA 520 at [52]; Mason v R [2010] NZSC 129, [2011] 1 NZLR 296 at [12];and Gamble v R, above n 5, at [51].8 At [49], citing R v P [1998] 3 NZLR 587 (CA) at 591.9 At [50], citing R v Mead [2002] 1 NZLR 594 (CA).directed the jury on the evidence that distinguished the rapes that were the subject ofcharge 3.[17] The appellant's defence was that the offending never happened and there wasno opportunity for it to have happened. As the charge stood, the jury was required toconsider the very wide date range of September 2015 to April 2016. However,Mr Brickell, for the appellant, submitted that under cross-examination, X was able toidentify the rapes (other than the party rape) as occurring only on the first three nightsof Ms W's night shift. Since the first date was known (27 November 2015) thesubsequent dates were able to be ascertained by the jury.[18] Mr Brickell argued that the appropriate course was for the Judge to havedirected that the representative charge 3 be divided into two single charges whichwould have covered the alleged rapes on 28 and 29 November 2015. That would haveallowed the jury to focus on the very limited period during which the offending wasalleged. The appellant's defence was much stronger if the jury was confined to thenarrow window of two consecutive nights in November 2015. This was, in part,because at that stage Ms D was still Ms W's partner and was more likely to be attentiveto the house rules put in place at the outset.[19] In addition, Mr Brickell argued that the particulars of the other two chargesshould have been amended to conform with the evidence at trial in relation to the dateof the offences.10 That would have seen charge 1 amended to specify the date of theoffence as on or about 27 November 2015. That would have ensured that the juryconsidering charges 1 and 3 would be considering three consecutive nights inaccordance with the evidence. Likewise, he submitted that the date of the allegedoffending in charge 2 should have been amended to specify on or about Easter 2016because it was clear that the complaint related to the alleged offending at the Easterparty.[20] Mr Brickell also argued that the failure to divide and amend the charges meantthat some jurors may have considered whether the appellant was guilty of theoffending on the specific dates in November, but others would have been considering10 Criminal Procedure Act, ss 16, 17 and 133.rapes on other occasions in the very broad range particularised in the charges. Thismeant a risk of the verdict not being unanimous. This risk was exacerbated by theprosecutor's focus on the evidential interview and his invitation to the jury to makeallowances for X's inability to recall dates because dates were not important.Should charge 3 have been divided?[21] Mr Brickell's argument was based on the evidence that X gave undercross-examination. However, that assumed that X's evidence under cross-examinationreflected her evidence generally. We do not accept that it did.[22] The Crown opened on the basis that:The charges cover a time period between September 2015 through to aboutMay 2016 when [X] is between seven to eight/nine years of age. It is a broadtime period but the focus is on a period of time when the defendant's motherhad a night shift type job and would be absent from the house in the evening.[23] It is common ground that this position fairly reflected the statement that X hadmade in her 2018 EVI, which was played to the jury. In her EVI, X gave a generaldescription of the offending:[X] [O]ne night his mum [X] got a new job.[X] [I]t was a night shift job, and he would have to stay home and, youknow, take care of me [X] while she was at work.[X] And he would come into my room [X] he would rip my pyjamas off me and [X] force me to have sex [X] [H]e did that to me every night [X] that she had left. He would give it a couple of seconds until shehad left out of the driveway and gone.[X] [H]e would always come into my come in every night and do thatto me.[24] X then gave more detail about the first occasion:[X] he just told me to wake up, shaking me up. 'Cos I'm a deepsleeper so, you know, it took him a while to wake me up, but Ieventually woke up. And as soon as I woke up, that's when he hadtaken off my clo-, my pyjamas, my cute unicorn pyjamas.[X] ... I think the first time he had just straightaway put his penis insidemy vagina [X] the first night wasn't so tough on me, so, you know, if I told himto stop he would stop the first night. But as he kept on coming in,he wouldn't listen. So I think it was because he was, you know, trying to make me think that this is going to happen every night. AndI didn't really know what was going on, so — until I realised all theother nights that he had kept on doing it to me.[25] X said that the offending happened "quite a few times".[26] X described when the offending finished:[X] [I]t had stopped when his mum got a new partner. Because she gota new job that was working daily, not nightly, so he had stopped. And,yeah, so it stopped when his mum got a new partner.[27] X described the "worst time" as being at the Easter party in 2016. This wasalso described by X as the last time, being the alleged offending covered by charge 2.[28] In evidence-in-chief X confirmed that the statements in her EVI were true.[29] In cross-examination, X was challenged about her statement that the appellanthad raped her every night. She made statements that were inconsistent with her EVI:Q. you see there on page 12 [of the EVI transcript]: "he would alwayscome in every night and do that to me", are you saying there that everynight he would come in and rape you, is that what you are getting at?A. Not every night, but it was three nights.Q. Pardon?A. It was the first three nights of [Ms W's] new job.Q. So did you mean that he was raping you every night that [Ms W] wasworking at night ?A. For the first three nights.Q. For the first three nights and then are you saying that's it, it stopped?A. Yeah.Q. Apart from the party of course. Is that what you're saying?A. Yes.[30] The notes of evidence show that during this interaction the Judge asked X ifshe wanted to have a break. Ms Hoskin, for the Crown, advised (without objectionfrom Mr Brickell) that the jury then asked whether X had any learning difficulties thataffected how she processed information and events. The officer-in-charge wasinterposed and the question was put to her. She confirmed that this was the position.Cross-examination of X resumed.[31] We were not invited to draw any particular inference from this aspect of thetrial and do not do so. We merely observe the obvious fact that the assessment of awitness is very much a matter for the jury, which enjoys advantages not available toan appellate court.[32] In closing the prosecutor did not expressly address the inconsistency in theevidence about how many times the offending occurred. The focus of the Crown'sclosing was on the general issue of credibility and the only reference to dates was inthat context:Don't impose some sort of higher standard on a young person. In fact, ifanything, it should be different because a young person doesn't have themarkers that an adult has, jobs and houses and diaries and phones and thingslike that and life experience that help them mark things. She just has what shehas as, first of all, an eight-year-old, then a 10-year-old, to try and marktimings and things of that sort. I am highlighting that because sometimes wecan fall into a situation where: "Well, she's not right about the time somethingoccurred or that doesn't make sense to us". Well, two things I would say aboutthat. One, that the time something happened, remember, isn't one of theelements or questions you are asked, neither is the particular date or the dayof the week or anything of that sort. The focus is on did it happen, and weunderstand people might get them mixed up, might have, you know, it doesseem that — I used the phrase: "One person's party is another person'sgathering", or something similar, that we are talking about two events [33] In comparison, the defence closing focussed heavily on the change in X'saccount of the offending. Counsel emphasised, at length, the evidence X had given inher EVI and said: This is her first story. [Ms W] starts work. We know that's November.Every night [Ms W] finishes the nightshift in April. So what's that, you canwork out how many nights that is. Every night he's coming in and raping her.As soon as [Ms W] goes off and then when he hears the car coming back,when he hears the car coming back and we'll see that, that's when hestops. But under cross-examination we get to where it happens, three nights only,and of course the party night, the fourth night This is a substantive shift. They talk about consistency. This is totalinconsistency. You imagine just someone stood up here and said, "I waswhacked for four months every night". And then when their story is testedand we look at the time of the testing when we get to the three nights, "Oh,no, well actually it was only three nights out of all those months." [34] Counsel went on to emphasise the contextual factors — the fact that X wasalready sexualised, that it was inherently unlikely that the appellant would be left tolook after her, and that on Ms D's evidence X often slept in her bed while Ms W wasat work.[35] In addition, counsel addressed the jury at length regarding charge 2 — the partyrape — on which the jury ultimately acquitted the appellant.[36] In relation to charge 3 the Judge directed the jury as follows:[20] Now, charge 3 is what is called a representative charge. Charge 3alleges that [the appellant] between the 14th day of September 2015 and the19th day of May 2016, but at times different to those allegations contained incharges 1 and 2, raped [X]. You will recall the evidence is that it is allegedthat [the appellant] raped [X] on three occasions. Now, I should say threeoccasions plus the party. Now, not surprisingly, she was not able to put a dateor dates when she said that that occurred. Rather, she said it was ongoing. So,to find [the appellant] guilty on charge 3 you must be satisfied that he did rape[X] on at least one occasion during the alleged period, but that occasion beingdifferent to the occasions referred to in charges 1 and 2.[37] Later, in summarising the respective cases, the Judge specifically referred tothe cross-examination and the apparent difference between X's answers incross-examination and her EVI:[36] Mr Fairley says, really, what you have to do here is, first, look at theEVI and what [X] said in that EVI and then you have got to compare that withwhat she is saying now because, Mr Fairley says, contrary to what the Crownsubmit to you, she has not been consistent at all. Remember when she saidthat [Ms W] started to work [the appellant] was left to look after her. Well,said Mr Fairley, given that these people knew that this was a troubled younggirl, do you think they really would have allowed that to have occurred? Then[X] says in her EVI that: "He did it to me every night. He would always comein and he would do it to me every night and it started when Mum started nightshift". Well, that changed somewhat under cross-examination. We now knowthat she is saying it happened on three occasions plus the party and Mr Fairleysays that is a quantum shift.[38] Clearly, X's statements under cross-examination were inconsistent with herEVI but that inconsistency did not mean that her evidence in cross-examination wasto be treated as determinative. In particular, it is significant that X was aged betweenseven and eight at the time of the offending in 2015–2016, 10 when she gave her EVIin 2018 and 13 when she gave evidence at trial in 2021, more than five years after theoffending. Her age, the drawn-out process and the inconsistencies in her account,suggest that X either could not, or could not reasonably be expected to, particularisethe exact dates of the offending.[39] Apart from the dates, the alleged offending was of multiple offences of thesame type — the appellant was said to have come into X's bedroom and raped her.There were no variations in the description of the instances of offending, nor any otherdistinguishing features that might have justified separate charges. We consider thatthe representative charge was still appropriate at the conclusion of the Crown case andthere was no justification for it to be divided.[40] We also note the point made by Ms Hoskin, that neither the very experiencedtrial counsel nor the very experienced trial Judge, considered dividing charge 3. Noris there any assertion of trial counsel error in the failure to do so. This point is notdeterminative but, for the reasons just discussed, we do not consider that there wasany basis on which the appellant could have sought to have the charges amended. Wenote, too, that dividing charge 3 would have carried the very real risk of the appellantbeing convicted on four discrete charges rather than three.The Judge's summing-up on unanimity[41] The Judge did not direct on unanimity specifically in relation to charge 3.In relation to charge 3 the Judge directed:So, to find [the appellant] guilty on charge 3, you must be satisfied that he didrape [X] on at least one occasion during the alleged period, but that occasionbeing different to the occasions referred to in charges 1 and 2.[42] At the conclusion of his summing-up, he said:In a moment, I will be asking you to retire to consider your verdicts, and I askyou, please, to remember that your verdicts must be unanimous [43] We do not consider that there was an error by the Judge in directing oncharge 3. It was for the jury to consider the effect of the inconsistency in X's evidencewhen assessing her credibility and reliability. It was open to the jury to accept onlysome of her evidence. The jury may therefore have accepted that, notwithstanding thestatements drawn from her in cross-examination, the offending was not limited tothose three nights. It was therefore proper for the Judge to direct as he did, drawingattention to the various statements X had made and recognising that it was open to thejury to determine the charge on the basis of the evidence that it accepted.Sentence appealSentencing in the District Court[44] The Judge sentenced the appellant on the basis of four rapes, being the firstoccasion and "three further occasions".11 The Judge viewed the first occasion as11 Sentencing notes, above n 2, at [2]."more opportunistic" but considered that the subsequent offending involvedpremeditation.12 He identified X's vulnerability as an aggravating factor but did notsee any breach of trust in relation to X.[45] The Judge treated the offending as falling within band two of R v AM.13 Hesettled on a starting point of eight and a half years.14[46] Responding to the arguments advanced by the appellant's counsel for a discretediscount for youth, previous good character, time spent on restrictive bail and thematters raised in the s 27 report, the Judge said:[16] Clearly, you are entitled to some credit for your youth although Iam not going to double count and also give you credit for previous goodcharacter because of course, you were very young. I accept that there shouldbe a further discount to recognise the factors set out in s 27.[17] I intend to give you a 20 per cent discount to recognise your youth.I intend to give you a further 15 per cent discount for the factors set out in thes 27 report. Accordingly, on the representative charge of rape, you areconvicted and you are sentenced to a term of five and a half years and on thecharge of rape, the first charge, you are likewise convicted and sentenced tofive and a half years.[47] Mr Brickell submitted that the starting point of eight and a half years was toohigh and the discount for youth was too low. Neither he, nor Ms Hoskin, criticised thediscount for s 27 factors, which they both regarded as appropriate.The starting point[48] The first issue raised in relation to the starting point is the Judge's decision tosentence on the basis of four rapes. Acknowledging the trial Judge's right to form hisown view of the facts on the basis of the evidence, Mr Brickell nevertheless submittedthat the appropriate basis for sentencing was for two rapes. He pointed out that theappellant's acquittal on charge 2 indicated some concern with X's evidence and thesignificant inconsistency between her EVI and evidence under cross-examinationmeant that a more conservative view ought to be taken. Ms Hoskin did not entirelyresist this submission; although she accepted that three offences was an appropriate12 At [7].13 At [9], applying R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.14 At [16].basis for sentencing, she nevertheless submitted that the Judge's reference to fourrapes would not materially have altered the starting point.[49] We agree with Mr Brickell that sentencing on the basis of four rapes did notreflect the evidence. If the Judge had proceeded on the basis of X's statements incross-examination, the evidence would only have allowed for three rapes. Otherwise,the evidence would not have justified finding a specific number of offences. However,on any view, the evidence indicated at least two rapes in addition to the first occasion.We consider that the appellant should therefore have been sentenced on the basis ofthree rapes in total.[50] We turn to consider whether the starting point was too high. Mr Brickellargued that it was excessive, having regard to comparable cases. However, a reviewof these cases does not suggest that. All the cases relied on by both Mr Brickell andMs Hoskin concerned relatively youthful offenders and much younger complainants,often family members. This was an appropriate approach, though we note that whilethe age of the defendant is relevant in terms of age disparity, which may indicategreater culpability, youth itself is properly addressed in terms of mitigating factorsrather than in setting the starting points.[51] Pere v R concerned two charges of sexual violation by rape and five of sexualconduct with a young person under 16.15 The defendant was aged 14 or 15 years atthe time of the first rape and 17 years at the time of the second. The complainant wasa young female relative, aged 11 or 12 at the time of the first rape and 13 or 14 at thetime of the second. On appeal this Court regarded the starting point of nine yearstaken by the sentencing Judge as too high in the circumstances of the case and reducedit to eight years. However, the significant distinguishing factor was the complainant'srequest in her victim impact statement for leniency. We infer that, without that factor,a starting point above eight years would have been appropriate.[52] Solicitor-General v Rawat concerned three instances of rape and associatedindecencies by an 18-year-old against the 11-year-old complainant.16 The aggravating15 Pere v R [2021] NZCA 407.16 Solicitor-General v Rawat [2021] NZHC 2129.features were the complainant's vulnerability (her age and recent arrival in thecountry), the repetitive nature of the offending and the harm to the complainant.These factors placed the offending between the bottom and middle of band two inR v AM, but closer to the middle than the bottom.17 On appeal to the High Court (thedefendant having pleaded guilty) Mallon J considered that a starting point of nine yearswould have been appropriate but that the sentencing Judge's starting point was "lenient on the cusp of being outside the available range but, supportable".18 In thecontext of a Solicitor-General appeal, the Judge stated that she would not havedisturbed the starting point if it were the only issue.[53] In M v Police the defendant, aged between 14 and 15, raped a younger familymember, aged between eight and 10, on two occasions.19 On appeal to the High Court,the Judge held that the eight year starting point taken by the sentencing Judge wasopen to him, commenting that a seven year starting point might have been appropriatehad there been only one incident of rape.20 This case is comparable but slightly lessserious than the present case because it involved two discrete instances of rape.[54] In R v MT the defendant was sentenced on three charges of sexual violation ofhis younger sister, two of rape and one for sexual violation by unlawful sexualconnection.21 Two of the charges were representative. The defendant was agedbetween 18 and 21 years and the complainant aged between six and nine years.Woodhouse J took a starting point of eight years.22 We accept that, because of thegreater disparity in age, the facts of R v MT are slightly more serious than the presentcase.[55] Lennon v R was an appeal in respect of offending by a 14 to 15-year-old againsttwo children — a girl aged between seven and eight and a boy aged between 10and 12.23 Only the offending against the boy involved sexual violation. There wereindecencies against the girl. The offending occurred over a period of some two years.17 At [35].18 At [36].19 M v New Zealand Police HC Wellington CRI-2011-485-72, 21 September 2011 at [15].20 At [15].21 R v MT [2016] NZHC 2374.22 At [19].23 Lennon v R [2012] NZCA 551.The sentencing Judge took a starting point of 10 years. This Court considered that astarting point of no more than nine years and six months would have been appropriate,noting particularly that the sexual violations occurred on only six discrete occasions.24[56] Finally, Overton v R involved an eight year starting point taken for offencesagainst a young relative on numerous occasions over a period of about two years whenthe complainant was aged between six and seven and the defendant between 15 and16, and subsequent offending when the complainant was 14 and the defendant 23.25This Court commented that a nine year starting point, for an adult offender, for thetotality of the offending would have been "stern, yet nonetheless available".26[57] The present case involved three instances of rape against a complainant whowas vulnerable because of her age and because she was a recent addition to thehousehold as a foster child. In addition, the age disparity was significant — theappellant was aged 14 or 15 and X aged seven or eight. It can be seen from the casesdiscussed above that a starting point above eight years was not excessive for theoffending.Allowance for youth[58] As noted, the appellant was 14 or 15 years old at the time of the offending. Hewas 21 years old at the time of sentencing. Mr Brickell argued that the 20 per centdiscount allowed was inadequate and out of step with discounts given in comparablecases. He submitted that a discount of 30 per cent was appropriate to recognise theappellant's age at the time of the offending, his age at the time of sentencing, theimpact of a long sentence on such a young man and his good prospects ofrehabilitation.[59] Ms Hoskin did not accept that the Judge had erred in his assessment of theappropriate youth discount, noting the wide variation in discounts that had been givenand submitting that the appellant's offending was not impacted by many of the youthrelated attributes often focused on, namely susceptibility to negative influences, peer24 At [39].25 Overton v R [2011] NZCA 648.26 At [24].pressure or impulsivity. As a result, the youth discount in this case was appropriate toreflect the impact of long sentences on young offenders and a young person's greatercapacity for rehabilitation. However, she argued that the appellant's rehabilitationprospects were not as favourable as those in other cases, with the probation officerdescribing him as having "a nonchalant attitude toward[s] the offences and noremorse or concern for his victim".[60] An allowance for youth recognises the age-related neurological differencesbetween young people and adults which make young people more susceptible tonegative influences and more impulsive; the fact that long sentences may be crushingon young people; and also that young people have greater capacity for rehabilitation.27However, this Court has also cautioned that youth, in itself, does not necessarily justifya significant reduction. In Pouwhare v R it observed:28[83] In the end, a judge sentencing a young person under theSentencing Act must always weigh the young person's age and the reasonswhy he or she offended, against the seriousness of his or her offending andprospects of rehabilitation. Sometimes the young person's age will be amitigating factor of high, perhaps decisive, significance not to becircumscribed by any fixed outer percentage. Equally, there can be no warrantfor saying that youth, of itself, must always prevail as the paramount value onsentence, or that youth alone can justify radically reducing the sentence whichwould otherwise be proper.[61] Discounts for youth generally vary between 10 and 30 per cent. There areoutliers; Mr Brickell relied, for example, on Martin v R in which the sentencing Judgehad allowed 50 per cent in respect of a 14 to 15-year-old offender who had committedserious sexual offending against a six or seven-year-old.29 On appeal that discountwas described as one that "could be seen as generous".30[62] In the end the appropriate discount reflects the particular circumstances of theoffender. For the following reasons we accept that the appropriate discount in thepresent case was 30 per cent. First, we accept Mr Brickell's submission that theoffending was properly viewed as opportunistic, rather than premeditated — animpulsive response to the opportunity that presented itself. Impulsivity is a27 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].28 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868.29 Martin v R [2015] NZCA 533.30 At [41].characteristic that can fairly be attributed to the appellant's age. Secondly, we alsoagree that a long sentence imposed on this 21-year-old for offending committed whenhe was 15 has the potential to be crushing. Thirdly, we consider that there ought tohave been recognition of the prospects for rehabilitation.[63] Mr Brickell accepted the provision of advice to court (PAC) report writer'sview that the appellant poses a high risk of offending in the future but pointed out thatthe assessment of risk appears to have been determined solely by reference to thenature of the offending and by his ongoing denial of the offending. We see it asrelevant that the appellant had no history of offending either prior to his offendingagainst X, nor afterwards. At the time of sentencing, he had a reasonable educationalbasis on which to build a productive life, a supportive partner and supportive motherand step-mother. In these circumstances there must be a prospect of rehabilitation,notwithstanding the concerns raised in the PAC report about his risk of re-offendingas a result of his continued denial of the offending. Denial of the offending does notnecessarily preclude the possibility of rehabilitation.31[64] Given the length of the term imposed, we consider that the youth discountgiven has resulted in a manifestly excessive sentence.Result[65] The appeal against conviction is dismissed.[66] The appeal against sentence is allowed. The sentence of five years and sixmonths' imprisonment is set aside and substituted with a sentence of four years andeight months' imprisonment.Solicitors:Crown Law Office, Wellington for Respondent31 Rolleston v R (No 2) [2018] NZCA 611, [2019] NZAR 79 at [39].