R v T (CA401/02) [2003] NZCA 312 (3 April 2003)

Last Updated: 12 June 2018

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 401/02
CA 404/02

THE QUEEN



v



T (CA 401/02) (CA 404/02)

Hearing: 26 March 2003

Coram: Anderson J Baragwanath J Gendall J

Appearances: P L Borich for Appellant
G C De Graaff for Crown

Judgment: 3 April 2003

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

[1] The appellant appeals against his conviction by a jury in the High Court at Auckland on 9 October 2002 of two representative counts of rape, three representative counts of sexual violation involving fellatio and one of attempted rape of his step-daughter between 1 February 1986 and 31 July 1994. The Solicitor-General seeks leave to appeal against the sentence of concurrent terms of four years imprisonment imposed on 1 November 2002. A feature of the case is that the appellant had previously been convicted and sentenced for like offending committed on the complainant on 28 August 1994.

Conviction

[2] In support of the appeal against conviction the appellant advances three grounds:

1. A pre-trial ruling of 2 July 2002 admitting evidence of recent complaint was wrong in principle.
2. The learned trial Judge erred in refusing the defence leave to crossexamine the complainant’s mother on her statement.

100. The jury’s verdicts were inconsistent and unsupportable.

Recent complaint

[3] The complainant said that she was aged five at the commencement of the alleged offending which continued until 28 August 1994 when the complainant’s mother caught the accused committing an act of attempted sexual violation by rape. On the night of that offence the complainant underwent interview by a specialist interviewer of which a videotape record was taken. She was also medically examined at the Starship Hospital. It is common ground that the complainant was not a willing participant in the interview, during which the interviewer asked her “Is this the first time your father has done anything to you?” Her response was a nod and noise, which appeared to indicate that the offence of 28 August was the only one. The medical examination took place at 3.50 am on 29 August 1994 about four hours after the offence had occurred. The medical notes contain no record of complaint of previous offending. A statement of 31 August 1994 by a house surgeon at Auckland Hospital records that the complainant was asked if such offending had happened before and she answered “No”.
[4] The appellant pleaded guilty to a charge of attempted sexual violation by rape and on 5 February 1995 was sentenced to three years imprisonment.
[5] In late September or early October 1994, some four to five weeks after the offending of 28 August 1994, the complainant went to live with an aunt and told her that the appellant had abused her on four occasions, saying that he had made her have oral sex once and that the other three occasions involved non-consensual intercourse.

The pre-trial ruling

[6] In a ruling of 2 July 2002 O’Regan J directed himself that, in order for the complaint to be admissible, the Crown must establish that it was made at the first reasonable opportunity after the offending. Counsel were agreed that there were no hard and fast rules as to the time within which a complaint must be made and that the Court could take into account such matters as the age and personality of the complainant, her relations to those to whom she might be expected to complain, the nature of complaint, the reasons for delay in complaint and other relevant circumstances: R v Nazif [1987] 2 NZLR 122, 125.
[7] Defence counsel accepted that the delay of four to five weeks after the episode of 29 August 1994 was not of itself sufficient to render inadmissible the complaint to the aunt. In R v Accused (CA132/97) [1997] NZCA 82; (1997) 15 CRNZ 26 this Court admitted the complaint by a girl aged 14 made some five to seven months after the offending had ceased, following the offender’s disappearance from the scene and her moving in with an aunt. Mr Borich accepted that there would be a case for admitting the complaint evidence if it had not been for the intervention by the police, the interviewer and the medical examiner. But he submitted that the complainant’s first opportunity to complain had been the video interview and, alternatively, the medical examination during the night and early morning of the 28 August offence. He submitted that, since this opportunity was not taken, evidence of a subsequent complaint should have been excluded.
[8] O’Regan J accepted the argument of Crown counsel that such complaint is to be seen as by way of a confidence so that the first opportunity will arrive only when the complainant has had access to a confidante – in this case an aunt. Applying that test he admitted the evidence. There was opportunity for the appellant to challenge that decision prior to the trial on 7 October 2002 but no interlocutory appeal was brought.

Submissions

[9] In support of the appeal Mr Borich emphasised submitted that there had been a number of earlier opportunities to make a complaint: to the complainant’s mother on 28 August 1994 and any time thereafter; to the police; to the medical staff at Starship Hospital; and to the specialist interviewer. Mr Borich emphasised the complainant’s denial of previous offending in response to the direct question from the house surgeon recorded on 31 August 1994.
[10] The Crown supported the Judge’s decision. Ms De Graaff also invited the Court to uphold the admission of the complaint on the alternative basis of rebutting an allegation of recent invention. She relied on Iu v R (CA 410/01), 8 August 2002 where this Court held that evidence of complaint did not satisfy the conditions for admission as evidence of complaint but it was admitted as tending to refute an argument of recent concoction.

Discussion

[11] The requirement of complaint at the first reasonable opportunity was introduced by the common law prior to the enactment of s23AC of the Evidence Act 1908:

23AC Delay in making complaint in sexual cases

Where, during the trial of any person for an offence against any of sections 128 to 144A of the Crimes Act 1961 or for any other offence against the person of a sexual nature, evidence is given or a question is asked or a comment is made that tends to suggest an absence of complaint in respect of the alleged offence by the person upon whom the offence is alleged to have been committed, or to suggest delay by that person in making any such complaint, the Judge may tell the jury that there may be good reasons why the victim of such an offence may refrain from or delay in making such a complaint.

[12] In R v H [1997] 1 NZLR 673, 680 a majority of this Court, while supporting the desirability of review by the Law Commission of this area of law and practice, confirmed that:

...the enactment of that section did not dilute or change the requirement that to be admissible as a complaint the complaint must have been made at the first reasonable opportunity...

[13] While s23AC has been held not to extend the period in which a complaint may be made it casts light on the sensibilities of complainants to which the law must have regard in considering what is the first reasonable opportunity.
[14] In this case the complainant was faced with real difficulty in complaining to her mother who was the partner of the accused. Indeed, at the relevant period she believed him to be her father. We see no reason to disagree with the appraisal of O’Regan J:

...in this case it is exceptional in that the video interview and medical examination occurred within hours of the old offence, in circumstances where the complainant had not initiated a complaint and was apparently a reluctant participant. In view of the complainant’s youth at the time [and the other factors mentioned in paragraph [6] of the present judgment], I accept [Crown counsel’s] submission that the video interview and medical examination do not justify a different conclusion from that reached by the Court of Appeal in R v Accused [CA132/97]. Accordingly, I find that the evidence of Ms [A] as to the first disclosure is admissible as recent complaint evidence.

[15] It is therefore unnecessary for us to consider the Crown’s alternative argument.

Cross-examination on previous statement

[16] The earliest date alleged in the indictment was 18 January 1986, the complainant’s fifth birthday, when she alleged an indecent assault of which the accused was acquitted. There was no evidence from her of offending prior to that date.
[17] The complainant’s mother gave evidence as to the complainant’s demeanour and general behaviour during the period of alleged offending from 18 January 1986 to 28 August 1994. The topic was raised by the defence in cross-examination in relation to the period after 18 January 1992 (counts 10 to 14: para [35] below):

Do you agree with me that at the time [the complainant] was at [deleted] that things as far as her schooling and general behaviour were started to go downhill? Her attitude went quiet.

Did she start wagging school? No.

What about after she had been caught with [T] did she start wagging school? That’s when she was at college and intermediate.

But she did start wagging school? Yes she did she also started falling back on her school.

Did that create arguments and problems between you and her? Not an argument I was very surprised to see her grades was dropping.

After Geo had been caught with her a couple of months after that was she sent to stay with Auntie [B]? Yes she was.

Was that to try and help sort her out a little bit? Both actually with her and I was taking it really hard myself and [the complainant] was as well so we were clashing.

And part of sending her to [B] was to cut down on the conflict? I didn’t agree at first but my parents and my sister felt we needed some time apart.

How long did she stay at [B]’s? She was there for a while.

[18] In re-examination the timeframe was expanded to cover the period prior to 18 January 1992:

You said in answer to a question from my friend that at a point [the complainant]’s attitude went quiet, what did you mean by that? When she was born and growing up she had a very bubbly attitude from time she was about 3 she was a quiet girl she started being not herself.

What age was that? When about 3 years old.

[19] In his police interview, the appellant said that he had touched the complainant on her vagina when she was “may be three and a half years old, going on four”.
[20] Counsel for the appellant sought leave to ask further questions: whether

1. the complainant was a quiet girl to begin with;
2. there were any dramatic changes in the complainant noticed by the witness at about the time of commencing school; and

100. the witness attributed the problems to the complainant’s starting school.

[21] He sought leave also, if the witness disagreed as to any such propositions, to crossexamine her on her statement of 9 May 2000 which read:

...when she started school, she became even quieter than normal. She was always a quiet girl to begin with. She stopped asking me things. She would just sit there sometimes. I thought that it was just problems at school. Certainly I didn’t notice any dramatic changes in [the complainant].

[22] In accordance with the rulings of the trial Judge, Neazor J, there followed the crossexamination:

Would you agree with me that [the complainant] was a quiet girl to begin with? Not at first.

Would you agree with me that there weren’t any dramatic changes in her going back to the time she started school and before? When she started school at 5 her attitude was already changing beforehand.

Would you agree with me that you put those problems down to her starting school? No.

Submissions

[23] Mr Borich submitted that the material in the statement was significant and that in terms of ss10 and 11 of the Evidence Act 1908, the learned trial Judge erred in declining leave to cross-examine upon it.
[24] Ms De Graaff submitted that the Judge was right to refuse leave and, alternatively, that the proviso should be applied.

Discussion

[25] It is common ground that Crown counsel, in his final address, suggested that the extent in the change in behaviour by the complainant, which the witness had reported, was consistent with offending commencing before the complainant had started school.
[26] In his summing up, the trial Judge directed the jury that:

In [his] many years of experience in the courts it is simply not possible to make any assessment of what had occurred between the complainant and an offender on the basis of her behaviour/demeanour... There was no psychological study or basis upon which it was possible to draw conclusions about the conduct of the accused on the basis of the complainant’s demeanour at any relevant point in time.

[27] The statement of 9 May 2000 was taken at a stage when, from the complainant’s statements, the police believe that the offending had commenced on his fifth birthday. That the conduct was said to have occurred a year or 18 months earlier did not emerge until the accused’s interview on 7 October 2001.
[28] As a result of the Judge’s order, the context in which the statement was made was not explored. It is impossible to know whether, as the Crown suggests, the statement followed questions directed to the complainant’s behaviour immediately before and after starting school, rather than concerning the complainant’s demeanour at the earlier stages when she was 3½ and 4.
[29] It is however to be noted that the appellant had pleaded guilty, on the morning of the trial and in the presence of the greater jury panel, to a series of alternative indecent assault counts, the earliest relating to the period from 1 February 1986 to 17 January 1988, and thus acknowledged offending from the time when the complainant was five years of age; he did not face any charge relating to the period before she turned five.
[30] The Judge was required to weigh competing considerations. One was the limit of the indictment which did not put in issue anything prior to the date of the complainant’s fifth birthday. The other was the fact that the re-examination elicited the evidence about the change in attitude at the age of about three.
[31] It was open to the Judge to cut off the enquiry as at 18 January 1986. To do otherwise would have risked opening up allegations for which the accused was not on trial. Ideally there would have been both an intervention at the stage in reexamination when reference was made to the accused’s behaviour changing at the age of about three and also directions to the jury at that stage to disregard that evidence.
[32] Crown counsel (not Ms De Graaff) ought not, in the light of the Judge’s ruling, to have made the submission referred to in paragraph [25] above.
[33] We are however satisfied that no miscarriage of justice has been established. The jury’s research performed for the Law Commission by Dr Young, Mr Cameron and Ms Tinsley Juries in Criminal Trials: Part Two (NZLC PP37 Vol. 2 1999 p53 para 7.11 brought out that

...jury decision-making was characterised by a very high level of conscientiousness in following the instructions the jurors were given.

It is relevant that, as discussed below, the jury in this case adopted a discriminating approach to its task, including acquitting the accused on count 1 which was first in time.

[34] The appellant does not meet the standard imposed by s385(1)(c), of establishing miscarriage of justice.

Inconsistent verdicts

[35] The counts in the indictment were (* = representative count):

Number	Place	Period	Principal count	Alter-native count	Verdict [Plea]
1	Porirua	18 January 1986	Indecent assault		Not guilty
2 *	Porirua	1 February 1986 – 17 January 1988	Sexual violation		Guilty
3*	Porirua	1 February 1986 – 17 January 1988	Attempted rape		Guilty
4*	Porirua	1 February 1986 – 17 January 1988		Indecent assault	[Plea of guilty] No verdict required.
5*	Avondale	1 January 1988 – 12 June 1988	Rape		Not guilty
6*	Avondale	1 January 1988 – 12 June 1988		Indecent assault	Not guilty
7*	Weymouth	13 June 1988 – 13 December 1991	Rape		Guilty
8 *	Weymouth	13 June 1988 – 13 December 1991		Indecent assault	[Plea of guilty] No verdict required
9 *	Weymouth	13 June 1988 – 13 December 1991	Sexual violation		Guilty
10*	Papatoetoe	18 January 1992 – 30 June 1994	Rape		Guilty
11*	Papatoetoe	18 January 1992 – 17 January 1993		Indecent Assault	No verdict required
12*	Papatoetoe	18 January 1993 – 31 July 1994		Indecent assault	[Plea of guilty] No verdict required.
13	Papatoetoe	1 February 1993 – 1 December 1993 (as amended)	Sexual violation		Not guilty
14*	Papatoetoe	18 January 1992 – 31 July 1994	Sexual violation		Guilty

[36] The principles as to inconsistency of verdicts were considered by this Court in R v H [2000] 2 NZLR 581. The first question is whether there is inconsistency in fact.
[37] The appellant’s submission was that the rejection of all specific counts and of both Avondale counts was inconsistent with the verdict of guilty. It is necessary to examine the counts in the light of the evidence.
[38] The first specific count, count 1, alleged indecent assault on the day of the complainant’s fifth birthday. Her evidence was that the accused had ejaculated into her mouth. In cross-examination defence counsel established she had failed to refer to that fact in her statement. In relation to the Avondale counts, defence counsel established that when the complainant made her eventual complaint to the police she mentioned nothing about anything have happened to her at Avondale. And in the case of count 13 the Crown had found it necessary before counsel addressed to amend the original dates alleged - 1 March 1992 to 31 August 1993 - to a different period.
[39] We are satisfied that those factual considerations are sufficient to explain the acquittals without giving rise to inconsistency. The point may equally be put in terms of paragraph [27] of R v H that:

The innate sense of fairness and justice of the jury might properly have been applied in reaching the verdict[s] of acquittal...

[40] The appeal against conviction accordingly fails.

Sentence

[41] The Solicitor-General seeks leave to appeal the four year sentence imposed on the five representative charges the subject of counts 2, 3, 7, 9 and 10 which together span an almost continuous period between 1 February 1986 and 31 July 1994 entailing unlawful sexual connection throughout. The conduct included repeated rape and serious sexual abuse of the appellant’s step-daughter.
[42] The appellant’s sentence on 5 April 1995 to three years imprisonment for the attempted rape on 28 August 1994 was the subject of the sentencing remarks of Thorp J with which we have been provided. Inevitably he placed heavy weight on the psychiatric reports that suggested a single acute psychotic episode which he treated as providing substantial basis for mitigation. His doing so accorded with the approach recently confirmed by this Court in R v Bridger (CA126/02, 12 December 2002).
[43] Neazor J as sentencing Judge selected a seven year starting point for the offending from which he deducted the three year term imposed by Thorp J resulting in the four year term imposed. The Crown submitted:

1. that the initial starting point was inadequate to reflect the totality of the offending;
2. that the sentencing Judge erred in giving the three year deduction; and

100. that the sentence is manifestly inadequate.

[44] Counsel for the respondent contested each submission.

The facts

[45] We have recorded that the complainant is the respondent’s stepdaughter. She grew up thinking he was her natural father. From the ages of 5 to 13 (until he was caught in the act by the complainant’s mother) he subjected her to regular sexual abuse of the most serious kinds.
[46] The respondent would enter her bedroom at night or arrange to be with her in other parts of the house. In the case of the Weymouth offending he placed a blanket on the dirt in the space beneath the family house and would force the complainant to accompany him there and rape her or force her to fellate him.
[47] From the age of five the respondent would force the complainant’s mouth on to his erect penis and manipulate her head up and down until he ejaculated in her mouth. The Judge accepted her account of the rape attempt when he attempted to force his penis into her vagina and later succeeded in inserting it to some degree, which the Judge found to be consistent with her account of pain and discomfort. The Judge found that the respondent treated her in this way on a regular basis over a period of years and that she was used as a sexual object throughout her childhood. He found that every part of her childhood was affected by fear of fresh assaults by the respondent and by the feeling that she could not complain.
[48] The experienced sentencing Judge found it not in the least surprising that the complainant ended up in prison herself. It was only because she did and was exposed to counselling that the present matters came to light in 1999/2000.
[49] When interviewed the respondent admitted occasionally rubbing his penis between the complainant’s legs until ejaculation but denied everything else. He accepted that he had offended against her from the time she was 3½ to 4 years until 12 going on 13. At trial he pleaded guilty to the alternative counts of indecent assault.

The 1994 offending

[50] The summary of facts in relation to the 1994 offending recorded an attempted rape involving forcible removal of the clothing of the complainant, then 13 years of age, and a persistent effort to rape her as she struggled. A three year term was imposed following recognition of “very special circumstances” of the case, which included the guilty plea and apparent mental illness.

The pre-sentence reports

[51] A pre-sentence report dated 24 October 2002 recorded a history of psychiatric illness and recorded that following sentence on 5 April 1995 the respondent had been released on parole from 6 November 1995 to 5 May 1997. He reported reliably on parole, attended counselling with a departmental psychologist and made some progress in the SAFE sex offenders programme which he did not however complete. The report recorded his remorse for the harm he caused the complainant. He largely blamed her for his predicament. The probation officer found the degree of cognitive distortion and lack of victim empathy surprising in view of the previous intensive intervention for the offending of which the respondent been convicted. The risk of reoffending was assessed as high and the respondent’s motivation to change as low.
[52] Psychiatric reports provided to the sentencing Judge in 1995 expressed the opinion that the respondent experienced an acute psychotic episode around the time of the 1995 offence. The consultant psychiatrist considered it to be moot whether he should be classified as having a personality disorder with periodic decompensations into psychosis or whether he should be seen as having a more long-term vulnerability to schizophrenia. He considered that the psychiatric disorder was well controlled with medication appropriate to schizophrenia which should probably continue indefinitely. He thought that the respondent was dangerous while psychotic but so long as anti-psychotic medication was continued the degree was low. A second psychiatrist recorded that the respondent:

...absolutely denies having any sexual relations with children himself, and say he finds it hard to believe that he committed the offence.

He recommended that the Court take the respondent’s mental illness into account as a factor of mitigation. He also recommended that the respondent continue to undergo psychiatric examination at intervals and accept prescribed medication for about a year.

Victim impact statement

[53] In her victim impact statement, the complainant described herself as a withdrawn child, an “outcast” at school who wore long-sleeve tops to cover her bruises and “walked funny” as a result of almost constant soreness in her genital area. For years she felt isolated and ashamed and lived in fear of the respondent, whom she regarded as violent and very controlling, an opinion confirmed by CYPS records. It appears that she was used to vent the respondent’s anger towards her natural father. At her present age of 26 she feels that her life is only now beginning. She still has daily flashbacks to the abuse.

The High Court sentencing

[54] The maximum penalty for sexual violation was increased in September 1993 from 14 to 20 years. As decided in R v K (CA 49/96, 13 August 1996) the Judge correctly held that the 14 year maximum term applied. Consistently with R v Tutty [1998] 3 NZLR 165 he did not accept the delay between the offending and the sentencing as constituting mitigating feature.
[55] The Judge recounted the gravity of the respondent's conduct and the consequences for the complainant. He acknowledged the respondent's expression of remorse but expressed the need for caution about that and the prospect of reoffending. He found it difficult to place weight on the 1995 psychiatric assessments made by doctors who thought they were dealing with a single episode. He accepted that the respondent had undergone some periodic psychiatric disorder but not enough to warrant reduction. Despite supportive references from people who had known him in association with his church after his period of imprisonment he found it hard to accept that the respondent was a totally new man. Acknowledging progress with the assistance of people he knew the Judge considered he still had a long way to go and that repentance did not allow him to go without penalty.
[56] Noting that the relevant starting point for a contested rape had been five years imprisonment he decided that a proper sentence would be of seven years, from which three should be deducted for the term previously imposed, making a term of four years which he imposed concurrently on all counts.

Submissions

[57] The Crown submitted:

1. the totality principle should not apply at all;
2. if it does the sentencing Judge erred in not taking into account the full extent of the offending (including the circumstances of the attempted rape in 1994) before deducting the 1994 sentence;

100. the three year discount was excessive; and

4. overall the sentence is manifestly inadequate.

[58] For the respondent, Mr Borich submitted that the sentence was appropriate.

Discussion

[59] In support of its submission that the totality principle should not apply the Crown relied on R v Fissenden (CA 364/95, 21 February 1996). This Court said:

Where separate sentences have been imposed for different offences, on appeal the proper approach to review is to assess what would have been the appropriate sentence had one Judge sentenced the offender on the same occasion for all the offences involved: R v Nuku [1969] NZLR 343. The headnote of that case refers to the situation where separate sentences are imposed by different Judges on the same day, but clearly the principle is not limited to that situation. Since the Crown has not disputed that that is the way the Court should approach the matter in this case, it is unnecessary to attempt to define the proximity which the offences, or the sentencing dates, need have to one another for the principle to apply (clearly there must be some limitation... to the application of the totality principle).

[60] That does not in our opinion sustain the Crown’s submission. There is no reason in this case not to apply the totality principle which now, in terms of s85(4)(a) of the Sentencing Act 2002, requires that the offence

...receive the penalty that is appropriate for the totality of the offending.

The essential question is whether that has occurred.

[61] There is in principle more force in the argument that the whole of the period including the 1994 offending is to be taken into account. But there is no reason to suggest that the sentencing Judge did not do so.
[62] We turn to the adequacy of the sentence.
[63] In support of the Solicitor-General’s appeal, Ms De Graaff drew our attention to the wide range of results in previous cases. In R v McL (CA 5/96, 14 November 1996) a term of 15 years imprisonment was imposed on a 71 year old in poor health who pleaded guilty to offending relating to the appellant’s four daughters and two granddaughters over a period of 24 years. The offending was regarded by the sentencing Judge as the worst he had seen during his 36 years of practice.
[64] In R v K (CA 49/96, 13 August 1996) the appellant was convicted of a representative charge of raping his step-daughter over a four year period when she was aged between 7 and 11. A sentence of nine years imposed following jury trial in what was described as a bad case of abuse of trust by a step-father, was reduced to seven years.
[65] The Crown referred to a post-September 1993 case R v T (CA 251/02, 31 October 2002) where the appellant raped and sexually abused his step-daughter over a period of six to seven years beginning when she was seven years old. The appellant was prepared to admit to minor indecencies only and showed no remorse. A term of 15 years imprisonment with a minimum non-parole period of nine years was upheld by the Court of Appeal which observed:

The totality of offending makes any comparable sentences for rape on a single occasion quite inappropriate. Repeated rape of a child over some four years, with its inevitable destructive impact, calls for the strongest denunciation. A sentence of just three-quarters of the maximum for a single offence cannot be regarded as excessive.

[66] We accept the Crown’s submission as to the aggravating features:

1. the age of the complainant (5-13);
2. the gross breach of trust by a person she believed to be her father in her own home;

100. the frequency of the offending occurring every second or third night;

4. its eight year duration (her entire primary school years);
5. the nature of the offending itself – rapes and gross oral violations until ejaculation;
6. the use of violence;
7. threats;
8. the effect on the complainant; and
9. the assessment that the respondent remains at high risk of reoffending.

[67] The factors in mitigation include:

1. The respondent's behaviour during the period since 1995; and
2. expressions of remorse.

As the Judge observed, neither of these is of significance in the present case.

[68] If this case had been dealt with in terms of today’s sentencing standards the sentence would have been clearly inadequate. But as the Judge recognised he was required by s19 of the Interpretation Act 1999 and the principles both of the common law and of s26 of the New Zealand Bill of Rights Act 1990 to apply the standards of the time of the offending. While at the lower end of the permissible range the seven years selected by the Judge was nevertheless within it.
[69] The next question is as to the three year deduction. We were told by counsel that the respondent served a total of 14 months imprisonment in relation to the 1995 conviction. The effect of the present four year sentence is to add at least 16 months to that, given the minimum non-parole period of one-third. That equates to a term of 7½ years.
[70] In the light of the sentencing range that applied at the time of the offending we are not persuaded on this SolicitorGeneral's appeal that the Judge's ultimate sentence was not open to him.
[71] The appeal against sentence also is dismissed.

Solicitors:
Crown Law Office, Wellington
Rice Craig, Papakura