[1] The appellant is a former police officer. He was convicted after trial before French J[1] and a jury on one charge under s 129A(1) of the Crimes Act 1961 of inducing a sex worker to have sexual connection with him, such consent being induced by a threat. He was acquitted on two other charges relating to the same woman. Those were a second count under s 129A(1) and a charge laid under s 104 of the Crimes Act of corruptly obtaining a bribe in the context of sexual activity. The appellant was subsequently sentenced by French J to a term of imprisonment of two years. [2] He now appeals against both conviction and sentence.
[2] The appeal against conviction is advanced on three grounds:

(a) the verdict of the jury is unreasonable or cannot be supported by the evidence;

(b) his conviction is inconsistent with his acquittal on the second count under s 129A(1) of the Crimes Act; and

(c) the trial Judge erred in refusing to accept a plea of autrefois acquit (previous acquittal) under s 358(1) of the Crimes Act or in refusing a stay on the basis of abuse of process.

[3] The ground for the sentence appeal is that the sentence was manifestly excessive. In particular, it is said that a community based sentence was appropriate in the circumstances.

The facts

[4] The circumstances of the offending are unusual but may be stated relatively briefly. The indictment alleged that the offending took place between 8 December 2006 and September 2007 at Christchurch. The Crown case was that the offending arose from three separate incidents:

(a) an occasion when the appellant stopped the complainant’s vehicle in Bealey Avenue while he was in his patrol car after which he drove the complainant to a rural area near the Belfast Cemetery and had sexual intercourse with her in the patrol car (“the Bealey Avenue incident”);

(b) a second occasion when the appellant had sexual intercourse with the complainant in a patrol car near the Belfast Cemetery (“the Belfast incident”); and

(c) a third incident when the appellant had sexual intercourse with the complainant at Ashgrove Terrace in a private motor vehicle (“the Ashgrove Terrace incident”).

[5] The bribery charge arose from the Bealey Avenue incident while the two counts under s 129A(1) arose from the Belfast and Ashgrove Terrace incidents. The appellant’s conviction related to the Belfast incident.
[6] Prior to the Bealey Avenue incident, the appellant and the complainant had engaged in regular sexual activity, invariably on a fee-paying basis. On each of these occasions, the appellant was in civilian clothes and was driving a private motor vehicle. Initially, the complainant was not aware that the appellant was a police officer but on 11 June 2005 she became aware of that fact. Sexual relations on a fee-paying basis continued notwithstanding.
[7] In November 2006, the appellant accessed the police computer and obtained details about the complainant including the status of her driver’s licence. The Crown case was that the Bealey Avenue incident occurred soon thereafter on 8 December 2006. However, the reliability of that date was challenged in cross-examination of the complainant and cannot be regarded as necessarily accurate. The exact date is not material. Suffice to say that it is likely the Bealey Avenue incident occurred sometime in late 2006 or possibly in early 2007.
[8] The facts relating to the Bealey Avenue incident as found by the Judge on sentencing are not in dispute. The appellant stopped the complainant’s motor vehicle one night on Bealey Avenue while he was on duty. He did so using the red and blue flashing lights on the police vehicle he was driving. He was in uniform. The complainant’s vehicle was neither warranted nor registered and there was a defect with her licence. The appellant told the complainant he could issue her with $1,000 worth of tickets and also mentioned the possibility that her car could be towed away. He did not issue any tickets on that occasion but instead drove her, in the patrol car, to the Belfast Cemetery where sexual intercourse took place.
[9] On that occasion and each time thereafter, the appellant did not pay for sexual activity with the complainant. According to the evidence, the issue of payment was never raised either by him or by the complainant.
[10] The complainant also related a discussion with the appellant in which she asked him what would happen if anybody saw him with her. His response was:

I would just have to arrest you for something and take you back to the station.

[11] The complainant said this made her feel scared and that was why she did not raise the issue of payment for the sexual activity which she said occurred on and after the Bealey Avenue incident. There was some equivocation in her evidence at trial as to whether the reference to the possibility of her being arrested was made at the time of the Bealey Avenue incident, or at the time of the Belfast incident. She said initially it was at the time of the Belfast incident, but agreed when shown a previous statement that this matter was raised at the time of the Bealey Avenue incident.
[12] In the Belfast incident, the complainant was standing on a street corner in the city. The appellant drove past a few times in his patrol car and then stopped. He was again wearing his police uniform. He told the complainant to meet him round the corner, which she did. He then told her to get into the patrol car and he took her back to the Belfast Cemetery where she said they had sexual intercourse in the patrol car.
[13] The circumstances of the Ashgrove Terrace incident were different. On this occasion, the appellant was in police uniform but was driving a private vehicle. According to the complainant, the appellant told her the vehicle was an impounded car (a statement he disputed). He drove her to the Ashgrove Terrace area where she said sexual intercourse took place once again.
[14] On or about 11 September 2007, the complainant made a statement to the police. The following evening, the appellant again approached her driving a private motor vehicle. He told her he knew her boyfriend had been arrested and that he (the appellant) had been trying to contact her. He also said he knew where she lived. When the appellant asked her to get in the car and have sex with him, she declined to do so for the first time.
[15] These events were relayed to the police who interviewed the appellant. He admitted having met the complainant some ten years before when he was 18 years of age. He accepted that he had sex with her on that occasion and that he had paid for sexual favours from her on a number of occasions since that time.
[16] From the time he became a police officer, the appellant said he had asked the complainant to consider becoming a police informant. The complainant strongly denied this in evidence. It was accepted that the appellant’s suggestion in this respect had never been discussed with any of his supervisors during the relevant period.
[17] When asked about the Bealey Avenue incident, the appellant admitted he had stopped her vehicle and that there had been a discussion about the absence of any registration or warrant of fitness and the defect in her licence. However, he denied suggesting to her that he could issue her with tickets for this offending. The appellant initially denied having sex with the complainant on that occasion, but subsequently admitted that there had been oral sex between them in the patrol car and that he had not paid the complainant. His explanation for not paying her on that occasion was that she had told him she thought it was kinky to have sex in a patrol car.
[18] The appellant admitted to seeing the complainant six or eight times after the Bealey Avenue incident. There may have been “a couple of freebies” but he said this was with the consent of the complainant.
[19] The appellant did not give evidence at trial and the principal evidence against him was that of the complainant.

Unreasonable verdict

[20] It is not in dispute that the Judge correctly identified and directed the jury as to the legal elements the Crown was required to prove in relation to the count under s 129A(1) of the Crimes Act on which the appellant was convicted. These elements were:

(a) the appellant had sexual connection with the complainant;

(b) there was an express or implied threat to make improper use of a power arising out of his occupation as a police officer;

(d) the threat induced her consent to the sexual connection; and

(e) the appellant knew the complainant had been induced to consent to the sexual connection by a threat of the kind described above.

[21] The Crown relied on four circumstances to establish the threat. These were:

(a) that the appellant told the complainant he would have to arrest her if he was seen;

(b) the use of the blue and red flashing lights in his patrol car to stop her vehicle in the Bealey Avenue incident;

(d) asking the complainant for sex while he was in police uniform.

[22] The Crown case was that the appellant engaged in a continuing course of conduct stemming from the original incident on Bealey Avenue when he had stopped the complainant in his patrol car. Contrary to the submission made before us by Mr Eaton on behalf of the appellant, the Crown relied on both express and implied threats by the appellant. The threats were express (to the extent that the appellant had said he would have to arrest her if he was seen with her) and were implied (to the extent of the use of the police vehicle for the purposes first of stopping her in the Bealey Avenue incident and then having sex with her in the police vehicle while he was in uniform).
[23] Having reviewed all of the complainant’s evidence, we are satisfied it was open for the jury to conclude that the appellant had sexual connection with the complainant and that her consent for that purpose was obtained on the basis of an express or implied threat by the appellant to make improper use of the powers available to him as a police officer.
[24] Prior to the Bealey Avenue incident, the appellant and the complainant had regularly engaged in sexual activity with the appellant paying for the complainant’s services on each occasion. On all of the occasions prior to the Bealey Avenue incident, the appellant had been in a private vehicle and was in plain clothes.
[25] As the Judge said, all that changed after the Bealey Avenue incident. The topic of payment for the complainant’s services was never again raised either by her or by the appellant, and no payment was made for her sexual services. It was open for the jury on the complainant’s evidence to accept that this major change in the previous pattern between the complainant and the appellant occurred by reason of the Bealey Avenue incident and the express or implied threats said to have been made.
[26] The appellant admitted stopping the complainant’s vehicle in Bealey Avenue at night with the patrol car and admitted discussing with her the issues of registration, warrant and defective licence. In direct contrast to the previous pattern, the appellant admitted that he obtained sexual favours from the complainant without paying for them on that occasion and that there were “freebies” thereafter. It was also open for the jury to accept the complainant’s evidence that the appellant told her he would have to arrest her if they were seen together.
[27] The complainant’s evidence was that she was scared by the appellant’s threats and, in consequence, did not raise the question of payment with him but went along with the sexual activity which occurred after the Bealey Avenue incident even though she did not wish to do so. She accepted in cross-examination that she was not concerned about the reference by the appellant to the $1,000 worth of tickets, but she was concerned about the prospect of her vehicle being towed away since she relied upon it for the purposes of her work. She repeatedly stated in evidence she was frightened about the prospect of arrest and she backed that up by reference to her boyfriend having been arrested in circumstances which had alarmed her.
[28] The jury had the advantage of seeing and hearing the complainant and it was open for them to accept that evidence.
[29] The complainant’s evidence in these respects was also sufficient, if accepted, to satisfy the third and fourth elements the Crown was required to establish. As to the fifth element (proof that the appellant knew the complainant had been induced to consent to the sexual activity on the basis of a relevant threat), the jury was entitled to infer, on the basis of the appellant’s evidence and the marked change in the pattern of sexual activity between the two after the Bealey Avenue incident, that the appellant must have known she was consenting to sex on the basis of his express or implied threats. The explanation of kinky sex that he offered at interview for this significant change in pattern was firmly rejected by the complainant. It was also wholly inconsistent with a major theme of her evidence which was that she did not want to be seen in the patrol car or with a police officer for reasons we shortly discuss.
[30] Mr Eaton raised a number of other issues which he said should have been sufficient, either singly or in combination, to have thrown doubt on the reasonableness of the verdict and the adequacy of the evidence to support the verdict. For example he pointed to the absence of any overt physical threat on any of the occasions when the prospect of sexual activity had been discussed, including on the last occasion when the complainant refused to go with the appellant and when, Mr Eaton submitted, it might have been expected he would have threatened her.
[31] Mr Eaton also submitted it was unreasonable for the jury to have concluded that the complainant’s consent was induced by a threat since she admitted in cross-examination that if he had paid for sex afterwards, then “it would have been okay”. He suggested this meant that her complaint was not about the threats but about not being paid.
[32] As to the first of these points, we do not consider the absence of any overt physical threat to be material. That was never part of the Crown case. It was unnecessary to prove physical threats or aggression on the part of the appellant in order to establish the charge. In relation to the second point, while the complainant accepted in cross-examination that she would have been prepared to continue the relationship if she had been paid, she also repeatedly stated that her willingness to continue to engage in sexual activity was dependant on the activity taking place other than in a police car or when the appellant was in uniform.
[33] There was an obvious basis for her concern in this respect. First, there was the risk of arrest if the two were seen together. The likelihood of that occurring would necessarily be increased if the appellant was in a police car at the time or was in police uniform. Secondly, there was evidence that other sex workers had confronted the complainant with allegations that she was a police nark. This was denied by the complainant but was a matter of real concern to her. If she were seen by other sex workers with a police officer, the risk to her from them would plainly be increased.
[34] We are satisfied there was sufficient evidence, if accepted by the jury, to sustain the conviction. This ground of appeal therefore fails.

Inconsistent verdicts

[35] In his written submissions, Mr Eaton submitted that the conviction on count 2 (the Belfast incident) was inconsistent with the acquittal on both counts 1 (Bealey Ave) and 3 (Ashgrove Terrace). However, at the hearing of the appeal, Mr Eaton abandoned his submission of inconsistency with count 1. He was right to do so since the elements of the bribery count arising from the Bealey Ave incident are quite different from the elements of the charge under s 129A(1) of the Crimes Act which was the offence charged for the Belfast and Ashgrove Terrace incidents. As Mrs Guy Kidd noted in her submissions on behalf of the Crown, the jury could well have declined to accept the submission made by the Crown that the complainant was offering or giving free sexual services with the intention of influencing the appellant in the exercise of his police powers since there is no evidence of an offer on her behalf to have sex with the appellant, nor was there any direct evidence from her that she intended to influence him. Rather, the general theme of the evidence from the complainant was that she consented to sex by reason of the threats made to her by the appellant.
[36] Mr Eaton’s submission as to inconsistency of the verdicts on counts 2 and 3 focused on the lack of any material differentiation at trial between counts 2 and 3. He submitted that the only difference was in respect of time and place. Otherwise neither counsel nor the trial Judge sought to differentiate the two counts which the Crown relied on as a pattern of conduct. Mr Eaton submitted there was no rational or reasonable explanation for the differing verdicts on those two counts. He submitted that, as a matter of logic, it would have been expected that the pattern of conduct would have become more established over time.
[37] We accept the submissions by Mrs Guy Kidd that there were material differences in the evidence relating to the Belfast and Ashgove Terrace incidents. The most obvious difference was that the appellant was driving a private unmarked motor vehicle and not a police patrol car at the time of the Ashgrove Terrace incident. As Mrs Guy Kidd submitted, the jury may well have reasoned that as the appellant and complainant were not in a marked police car at the time of the Ashgrove Terrace incident, the threat to arrest her if they were seen was much less likely to be realised if they were in a civilian vehicle.
[38] The significance of the difference in the vehicles used in each of these two occasions was supported by the availability of independent evidence from another sex worker in respect of the Belfast incident. She gave evidence of having seen a police patrol car pull up in the city and a uniformed police officer getting out of the vehicle and speaking to the complainant. The witness also saw the two of them driving away in the patrol car.
[39] We are satisfied that these factual distinctions were sufficient to provide a rational explanation for the differing verdicts on counts 2 and 3. This ground of appeal also fails.

Previous acquittal/abuse of process

[40] Mr Eaton submitted that a plea of previous acquittal was available to the appellant under s 358(1) of the Crimes Act on the basis that his conviction for an offence under s 129A(1) was substantially similar to his acquittal on a previous charge laid in respect of the same incident under s 16 of the Prostitution Reform Act 2003. The appellant relied upon a deemed acquittal following his discharge on the s 16 count by Panckhurst J at the commencement of an earlier aborted trial. Alternatively, Mr Eaton submitted that it was an abuse of process for the Crown to proceed with the s 129A(1) charges in all the circumstances.
[41] The criminal process relating to the offending has been somewhat tortuous and it is necessary to set out the relevant background to that process. On 12 October 2007 the appellant was charged with one information alleging an offence under s 16 of the Prostitution Reform Act (which we will refer to as “the s 16 offence”).
[42] Essentially, the s 16 offence may be described as inducing or compelling a person to provide commercial sexual services as a result of a threat. In the present case, the relevant threat was said to be a threat by the appellant to use improperly his power or authority as a police officer to the complainant’s detriment.
[43] The Crown later filed an indictment containing three counts – two counts alleging the s 16 offence and one count of bribery under s 104 of the Crimes Act. It was accepted that one of the s 16 offences and the count of bribery were intended as alternatives in relation to the Bealey Ave incident.
[44] On 1 September 2008, the appellant appeared for trial in the High Court at Christchurch. He was arraigned and pleaded not guilty to all three counts. A jury was empanelled and it is accepted that the appellant was put in the charge of the jury. However, by prior arrangement, the jury was then sent away while the Court considered pre-trial applications filed by the appellant seeking an order that the bribery count was a nullity (it was said the Solicitor-General’s consent required for the charge was invalid due to a mismatch of dates) and an application for a discharge under s 347 of the Crimes Act in relation to the two counts alleging the s 16 offences.
[45] Panckhurst J ruled that the bribery count was a nullity and discharged the appellant on the s 16 counts.[3] The discharge on those counts was essentially on the footing that the appellant could not be convicted because the services said to have been provided by the complainant to the appellant were not commercial sexual services. Rather, they had been provided free of charge. Pankhurst J recorded:

[30] The element of commerciality is central to those cases to which s 16 responds. As the present alleged factual situation may demonstrate, other offences in the Crimes Act meet those cases which are non-commercial. A bribe is very widely defined: see s 99. Should it be established that the accused obtained free sexual services by corrupt use of this official position, s 104(1) will apply. An expansive interpretation of “other reward” in the Prostitution Reform Act is not only unnecessary, but would also stretch that phrase beyond breaking point.

[46] On 5 September 2008, the appellant appeared before Panckhurst J and was formally discharged in open court on the two s 16 offences. The jury was then discharged while the Crown considered its position. While it was always envisaged that a fresh charge might be laid under s 104 (with a further consent obtained from the Solicitor-General for that purpose), it was not then contemplated that charges under s 129A(1) of the Crimes Act might be laid. However, in October 2008 a further information was laid alleging an offence against s 129A(1) on the same date as the alleged bribery.
[47] After a further depositions hearing, the Crown solicitor filed an indictment containing one count of bribery on the date of the Bealey Ave incident and a representative count under s 129A(1) covering the period from 8 December 1006 to 10 September 2007. The representative count was later amended to include two specific counts under s 129A(1) to allege distinct offences relating to the Belfast and Ashgrove Terrace incidents.
[48] Prior to the appellant’s second trial, French J ruled that a plea of previous acquittal was not available to the appellant by virtue of the deemed acquittals under s 347 on the s 16 offences. She found that the previous acquittal defence was not available because the s 16 offences were not the same, or substantially the same, as the s 129A(1) offence. No element of commerciality was required in relation to the sexual offending contemplated by s 129A(1). The Judge also considered that the s 129A(1) charge was not one which could have been substituted for the s 16 offence by amendment. French J also expressed the view that the underlying purpose of the special plea of previous committal had not been infringed because the s 16 offences had not been litigated at the time of the orders for discharge made by Panckhurst J.
[49] Section 358(1) of the Crimes Act provides:

358 Pleas of previous acquittal and conviction

(1) On the trial of an issue on a plea of previous acquittal or conviction to any count, if it appears that the matter on which the accused was formerly charged is the same in whole or in part as that on which it is proposed to give him in charge, and that he might on the former trial, if all proper amendments had been made that might then have been made, have been convicted of all the offences of which he may be convicted on any count to which that plea is pleaded, the Court shall give judgment that he be discharged from that count.

[50] Sometimes described as the double jeopardy rule, this provision is fraught with difficulties, some of which are captured in an article by Richard Mahoney.[4] The underlying rationale for the special pleas is that a person should not be tried again for an offence which is the same, or substantially the same as one for which he or she has previously been acquitted or convicted. As Lord Morris put it in Connelly v Director of Public Prosecutions:[5]

The principle seems clearly to have been recognised that if someone had been either convicted or acquitted of an offence he could not later be charged with the same offence or what was in effect the same offence.

[51] This principle has been adopted in New Zealand by this Court in R v Brightwell[6] and more recently in R v Morgan.[7]
[52] As Henry J said for the Court in Brightwell:[8]

The underlying principle is that a person is not to be prosecuted twice for the same crime. The special plea, however, does not operate where two distinct offences are committed by the one act. The question is not whether the facts or the evidence relevant to both are the same, but whether the offences are the same or substantially the same. In R v Barron [1914] 2 KB 570 Lord Reading CJ said at p 575:

It is quite plain that the learned judge did not intend to lay down and did not lay down as a general principle of law that a man cannot be placed twice in jeopardy upon the same facts if the offences are different.

[53] The comparison between the earlier and later charges must embrace “both the facts which constitute the crime and the legal characteristics which make it an offence”.[9] This is a vital consideration when addressing the first limb of s 358(1), namely whether the matter on which the accused was formerly charged “is the same in whole or in part as that on which it is proposed to give him in charge ...”.
[54] Section 16 of the Prostitution Reform Act 2003 relevantly provides:

16 Inducing or compelling persons to provide commercial sexual services or earnings from prostitution

(1) No person may do anything described in subsection (2) with the intent of inducing or compelling another person (person A) to—

(a) provide, or to continue to provide, commercial sexual services to any person; or

(b) provide, or to continue to provide, to any person any payment or other reward derived from commercial sexual services provided by person A.

(2) The acts referred to in subsection (1) are any explicit or implied threat or promise that any person (person B) will—

(a) improperly use, to the detriment of any person, any power or authority arising out of—

(i) any occupational or vocational position held by person B; or

(ii) any relationship existing between person B and person A:

(b) commit an offence that is punishable by imprisonment:

(i) of any offence committed by any person; or

(ii) of any other misconduct that is likely to damage seriously the reputation of any person; or

(iii) that any person is unlawfully in New Zealand:

(d) supply, or withhold supply of, any controlled drug within the meaning of the Misuse of Drugs Act 1975.

[55] The indictment considered by Panckhurst J charged the appellant with two offences under s 16(2)(c)(i) in the following terms:

... [the appellant] on or about 8 December 2006 at Christchurch with the intent of inducing or compelling [the complainant] to provide commercial sexual services to him, threatened to make an accusation or disclosure of an offence committed by [the complainant].

[56] The expression “commercial sexual services” is defined in s 4(1) of the Prostitution Reform Act as meaning:

... sexual services that–

(a) involve physical participation by a person in sexual acts with, and for the gratification of, another person; and

(b) are provided for payment or other reward (irrespective of whether the reward is given to the person providing the services or another person).

[57] By comparison, s 129A(1) of the Crimes Act relevantly provides:

129A Sexual conduct with consent induced by certain threats

(1) Every one who has sexual connection with another person knowing that the other person has been induced to consent to the connection by threat is liable to imprisonment for a term not exceeding 14 years.

...

(3) For the purposes of subsection (1), a person who has sexual connection with another person knows that the other person has been induced to consent to the sexual connection by threat if (and only if) he or she knows that the other person has been induced to consent to the sexual connection by an express or implied threat of a kind described in subsection (5).

...

(5) The kinds of threat referred to in subsections (3) and (4)(a) are-

(a) a threat that the person making the threat or some other person will commit an offence that-

(i) is punishable by imprisonment; but

(ii) does not involve the actual or threatened application of force to any person; and

(b) a threat that the person making the threat or some other person will make an accusation or disclosure (whether true or false) about misconduct by any person (whether living or dead) that is likely to damage seriously the reputation of the person against or about whom the accusation or disclosure is made; and

(c) a threat that the person making the threat will make improper use, to the detriment of the person consenting, of a power or authority arising out of-

(i) an occupational or vocational position held by the person making the threat; or

(ii) a commercial relationship existing between the person making the threat and the person consenting.

[58] Count 2 in the indictment (relating to the Belfast incident) charged the appellant with an offence under s 129A(1) in that:

... between 8 December 2006 and 10 September 2007 at Christchurch had sexual connection with [the complainant] knowing that [the complainant] had been induced to consent to the connection by threat, namely that he would make improper use to the detriment of [the complainant] of a power arising out of his occupation as a law enforcement officer.

[59] Comparing the elements of the s 16 offence and the offence alleged under s 129A(1), there can be no doubt that the principal difference between the two is that to secure a conviction under s 16, the prosecution must prove that the complainant was induced or compelled to provide commercial sexual services as a result of one or more of the threats or promises described in s 16(2). In terms of the definition of commercial sexual services, the sexual services must be provided for payment or other reward. The offence of inducing sexual connection by threats under s 129A(1) does not require proof that the sexual connection occurred on a commercial basis. Provided the other elements of the offence are proved, the offence is complete whether or not the sexual connection takes place for payment or reward. The crucial point in the present case is that, on the complainant’s evidence, the appellant could never have been convicted of the s 16 offence because the sexual services were provided by the complainant free of charge.
[60] But there are other material differences between the s 16 offence and the offence under s 129A(1). These include:

(a) The s 16 offence does not refer to the issue of consent at all. Its focus is on the use of specified threats to induce or compel someone to provide commercial sexual services whether or not the activity is consented to. In contrast, s 129A(1) requires proof of consent to sexual connection induced by one of the specified threats.

(b) the definition of commercial sexual services in the Prostitution Reform Act refers to “sexual acts” which are not defined. In contrast, s 129A(1) refers to “sexual connection” which has the specific definition contained in s 2 of the Crimes Act. The expression “sexual acts” in the Prostitution Reform Act is wide enough to include acts which could include both sexual connection and indecent acts falling short of sexual connection as defined. Inducing indecent acts by threats is conduct covered by s 129A(2) of the Crimes Act.

(c) the mental elements of the two offences are different. Under s 16, the prosecution must prove the “intent of inducing or compelling” the sexual acts while under s 129A(1), the prosecution must prove that the accused knows that the other person has been induced to consent to the connection by reason of the threat. It is generally accepted that proof of actual knowledge by an accused of a particular state of mind by another is more difficult for the prosecution than proof of an intention on the part of the accused.

[61] As French J noted, the s 16 offences originally charged were laid under subs (2)(c)(i) rather than under subs (2)(a)(i). The latter would have been much closer to the kind of threat identified in s 129A(5)(c)(i) with which the appellant was later charged. Nevertheless, we propose to put that difference to one side for present purposes.
[62] Mr Eaton submitted that the s 129A(1) offence was the same as that formerly charged under s 16 either in whole or at least in part. We accept that there are elements of the two offences which are similar or the same. Both involve the use of threats of a specific kind for the purpose of inducing or compelling another person to engage in forms of sexual activity. However, the essential difference is that the offence under s 16 requires proof of sexual services being provided for payment or reward whereas the s 129A(1) charge has no such requirement. This important difference (combined with the other differences we have noted) is so substantial that we do not regard the two offences as being the same or substantially the same in terms of s 358.
[63] An acquittal on the s 16 charge was inevitable on the basis of the appellant’s evidence that the sexual services were provided free of charge. In contrast, there was no such inevitability of result in the charge later laid under s 129A(1).
[64] In interpreting and applying s 358(1), the Court must also have regard to the underlying purpose of the section. This case has parallels with the decision of the High Court of Australia in Island Maritime Limited v Filipowski[10] in which the Master of a ship had been charged with discharging oil contrary to s 27(1) of the Marine Pollution Act 1987 (NSW). At the conclusion of the prosecutor’s case, counsel for the defendants made a submission that there was no case to answer based on the construction of the Act, according to which s 27 could not apply to such a discharge. That application was successful but later the prosecutor brought fresh proceedings relating to the same discharge this time alleging contraventions of s 8 of the Marine Pollution Act. The High Court ultimately upheld the dismissal of the applications at first instance, finding that the appellants had never been in jeopardy on the first trial as they had been charged under the wrong section.
[65] It is an essential element of a successful plea of previous acquittal to establish there has been a “former trial”. What may constitute a former trial for the purposes of s 358(1) and the task of reconciling a deemed acquittal under s 347 with s 358 were discussed by this Court in R v Taylor.[11] Differing views were expressed on this point. Chambers J considered the former trial did not commence until arraignment or (if there had been a prior arraignment) until the jury was empanelled.[12] Panckhurst J considered the trial commences when the accused is put in the charge of the jury, but also recognised that, in some circumstances, even a full trial may not involve prior jeopardy.[13] Both Judges considered on the facts that the special plea of previous acquittal was not open to the appellant since he had been discharged under s 347 prior to trial. Fogarty J dissented, holding that the deemed acquittal under s 347 should be given full effect and that the special plea was available.[14]
[66] While it might be said in the present case that the trial before Panckhurst J had started (because the jury had been empanelled and the appellant had been put in the charge of the jury) he could never have been in jeopardy of conviction because the Crown was never able to prove an essential element of the s 16 charges. The merits of the case against the appellant under s 16 were never entered into. In a real sense, therefore, the double jeopardy rationale was not engaged.
[67] Mr Eaton also submitted that the second limb of s 358(1) was satisfied, namely that the appellant might, on his former trial, if all proper amendments had been made, have been convicted of the s 129A(1) offences. The application of this second (cumulative) limb of s 358(1) has given rise to some differences of approach. As Richard Mahoney has pointed out in the article already mentioned, the relationship between the separate limbs of s 358(1) is not necessarily straightforward. And, as he also points out, there have been differences of approach by various courts in relation to the second limb. Some have taken a more expansive view than others of the scope of the hypothetical amendment power described in this provision.
[68] French J adopted the view that the amendments contemplated by s 358 are of a housekeeping nature, being amendments necessary to repair a defective charge rather than the substitution of one charge for another.
[69] It is not strictly necessary for us to reach a final conclusion on this issue in view of our conclusion on the first limb. Mrs Guy Kidd submitted that if the reference to all proper amendments was intended to cover complete substitution of any charge available on the facts, it would never be possible for charges to be laid in a subsequent indictment relating to the same subject matter. This may overstate the issue (because, for the plea to succeed, any substituted charge would have to be the same, or substantially the same, as the original charge). But there is still some validity in the point that the public interest might not be served if an unduly liberal view were taken of the scope of the hypothetical power of amendment. The Crown should not be inhibited in bringing a further charge where appropriate. On the other hand, if the section contemplates only very minor amendments to the indictment, then the policy rationale for the double jeopardy rule could be undermined and s 358 would provide very limited protection to an accused.
[70] The different purposes of the Prostitution Reform Act and the Crimes Act are also relevant to the hypothetical amendment issue. The purpose of the Prostitution Reform Act[15] is to decriminalise prostitution and to create a framework that, amongst other things, “safeguards the human rights of sex workers and protects them from exploitation” and “promotes the welfare and occupational health and safety of sex workers”.[16]
[71] The Prostitution Reform Act is therefore aimed at the protection of a particular class of persons – those who provide sexual services on a commercial basis. It is unlikely that the power of amendment available in respect of indictable matters would be exercised so as to substitute a charge under the Crimes Act (for offending which relates equally to all persons) for a charge laid under entirely different legislation aimed at the protection of a much smaller and specific section of the public.
[72] We incline to the view that a narrower approach to hypothetical amendments under the second limb is more consistent with the underlying policy rationale of s 358. It is also supported by at least one High Court authority.[17] But we reach no concluded view on this point.
[73] We conclude that the plea of previous acquittal was not available to the appellant since the first limb (the same, or substantially the same, charge as that on which the appellant was previously acquitted) is not made out.
[74] It remains to deal with the abuse of process point. There can be no doubt that the power available to the Court to stay proceedings for abuse of process may be exercised notwithstanding that the previous acquittal plea is not available. That has been confirmed recently by the majority of this Court in R v Taylor.[18] Mr Eaton submitted that the laying of the charges under s 129A(1) was an abuse of process, noting particularly that the Crown had never sought to amend the indictment at any time either before or during the hearing conducted by Panckhurst J. Although the possibility of a bribery charge being relaid was clearly contemplated, there was no suggestion that any charge under s 129A(1) was contemplated. He reiterated his submission that the s 129A(1) charge was substantially the same as the s 16 charges on which the appellant was discharged.
[75] We do not accept Mr Eaton’s submission on this point. It was envisaged by Panckhurst J that further charges might well be laid. While it is accepted that charges under s 129A(1) were not raised at the time of the hearing before Panckhurst J, we do not see any unfairness to the appellant or any abuse of process in those charges being laid subsequently. The appellant could not and did not contend that he was prejudiced by the course followed by the Crown. There was a further depositions hearing at which the complainant’s evidence was tested. The appellant had ample notice of the substituted charges. As already noted, we do not accept the appellant’s submission that the s 129A(1) charges were substantially the same as the s 16 offences. This ground of appeal also fails.

Sentence appeal

[76] In dealing with the sentence appeal, Mr Eaton advised that the appellant did not take issue with the conclusion by the sentencing Judge that an otherwise appropriate sentence was one of two years’ imprisonment. However, he submitted that the Judge erred in concluding that:[19]

Denunciation and general deterrence must be a primary consideration in this case and that those interests would not be sufficiently met by a sentence of home detention.

[77] He submitted there was no legal principle that home detention was inappropriate when sentencing a police officer, and that the sentencing purposes of denunciation and deterrence could be met by a sentence less than a full time custodial sentence.
[78] Mr Eaton pointed out that the appellant was 31 years of age and had no previous convictions. He had been obliged to leave the police force and his reputation was ruined.
[79] In sentencing the appellant, French J noted the features identified by Mr Eaton. She also recorded that although his conduct had cost him his marriage, he still enjoyed strong support evidenced by a number of referees and that he had been an effective police officer. The Judge correctly described the purposes of sentencing and the principle, emphasised by counsel, that she was obliged to impose the least restrictive outcome appropriate in the circumstances.
[80] However, the Judge then observed:

[24] ... I also consider that, because an abuse of power is an inherent feature of this offence, it is important to avoid double counting by citing breach of authority. The fact, however, that you committed this offence as a police officer is nevertheless an aggravating feature because of the harm done to the police force and the resulting loss of public confidence in the police. That is something that strikes at the very heart of our legal system. It is imperative that we have faith in the integrity of our sworn police officers who are entrusted by the community with the task of enforcing the law.

[81] The Judge also took into account, as an important aggravating feature, the vulnerability of the complainant. After addressing mitigating factors already identified and the fact that, as a former police officer the appellant would be at risk in prison, the Judge turned to the issue of home detention. In that respect she stated:

[31] ... In my view, however, home detention, even taking into account the factors mentioned by Mr Eaton, would nevertheless be an inappropriate response to the seriousness of this offending involving as it did a police officer abusing his power for his own personal benefit. I accept the submission made by Mr Zarifeh that denunciation and general deterrence must be a primary consideration in this case and that those interests would not be sufficiently met by a sentence of home detention.

[82] We are satisfied, for the reasons the Judge gave, that a sentence of imprisonment was entirely appropriate. Cases of this kind are rare in New Zealand but a firm response is required where a member of the police abuses his power and authority for private purposes. We agree entirely with the Judge that the sentencing purposes of denunciation and general deterrence called for nothing less than a sentence of imprisonment in the circumstances of this case.
[83] Accordingly the sentence appeal also fails.

Solicitors:
Crown Law Office, Wellington, for Respondent

[1] R v Connolly HC Christchurch CRI-2008-009-14401, 31 July 2009.
[2] R v Connolly HC Christchurch CRI-2008-409-14401, 17 December 2009.
[3] R v Connolly HC Christchurch CRI-2007-009-1457, 3 September 2008.

[4] Previous Acquittal and Previous Convictions in New Zealand: Another Kick at the Cheshire Cat 1990 OLR 222.
[5] Connelly v Director of Public Prosecutions [1964] AC 1254 (HL) at 1307-1308.
[6] R v Brightwell [1995] 2 NZLR 435 at 436-438.
[7] R v Morgan [2005] NZLR 791 at [13].
[8] At 437 – 438.
[9] Connelly 1339 per Lord Devlin.
[10] Island Maritime Ltd v Filipowski [2006] HCA 30, 226 CLR 328.
[11] [2008] NZCA 558, [2009] 1 NZLR 654.
[12] At [36].
[13] At [116] – [117].
[14] At [135] – [141].
[15] Section 3.
[16] Section 3(a) and (b) of the Prostitution Reform Act 2003.
[17] New Zealand Police v H (1985) 1 CRNZ 580 at 586 per Hardie Boys J.
[18] At [51] and [127].
[19] At [31].

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