NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY SECTIONS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmls	
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE	
CRI-2018-488-20
[2018] NZHC 2702	

BETWEEN	ANTHONY CHARLES PARFOOT

Applicant	
AND	THE QUEEN

Respondent	

Hearing:	15 October 2018	
Counsel:	S Thode for applicant
R K Thomson for Respondent	
Judgment:	18 October 2018	

JUDGMENT OF KATZ J

This judgment was delivered by me on 18 October 2018 at 3.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:	Thode Utting & Co, Auckland
Crown Law, Wellington

PARFOOT v THE QUEEN [2018] NZHC 2702 [18 October 2018]

Introduction

[1]	Anthony Parfoot has been convicted of sexually violating and indecently assaulting a 14-year-old girl.1 The conviction followed a Judge-alone trial before Judge BA Gibson in the District Court at Kaikohe. Mr Parfoot was sentenced to two years and nine months’ imprisonment.2 He appeals his conviction and sentence.

[2]	Mrs Thode, on behalf of Mr Parfoot, submitted that the Judge was wrong not to grant a pre-trial application to change his election from a Judge-alone trial to a jury trial. She further submitted that the Judge erred in fact and law in entering convictions on both charges.

[3]	The issue arising on the sentence appeal is whether the sentence was manifestly unjust.

Facts of the offending

[4]	The facts of the offending, as outlined in the Conviction Judgment, are as follows.

[5]	The offending occurred on 6 February 2016.  The victim  was unknown to  Mr Parfoot. She had travelled to his property in Northland from Auckland, with a friend of a similar age and her friend’s parents. It was arranged that the group would stay at  Mr  Parfoot’s  address  overnight.  Mr  Parfoot  also  had  an  adult  friend, Ms Cunningham, staying with him.

[6]	A considerable amount of drinking occurred during the evening. Mr Parfoot’s evidence was that by the time he retired for bed he had consumed 10 bottles of Heineken. He was sufficiently intoxicated that he needed assistance climbing the stairs. Both 14-year-old girls were also drinking—beer and the blended spirit Cody’s.

[7]	Mr Parfoot was the first to go to bed. His bedroom was connected to the room in which the victim was to spend the night by a shared bathroom.

1	R v Parfoot [2018] NZDC 4453 [Conviction Judgment].
2	R v Parfoot [2018] NZDC 11578 [Sentencing Notes].

[8]	The victim’s evidence was that she had been the last to retire to bed. She went to the bathroom and while in the bathroom Mr Parfoot came in and touched her breasts. Her evidence was that Mr Parfoot removed her bra, took down her pants and underwear, and touched the middle of her vagina with his fingers. He did not fully penetrate her. He then turned her around so that he was behind her. The victim protested, pushed Mr Parfoot off and put on her clothes. She left the bathroom.

[9]	The victim went downstairs and described the incident to the first person she could find—Ms Cunningham. Judge Gibson accepted that Ms Cunningham did not believe that the offending had occurred. Nonetheless, Ms Cunningham roused other members of the household and Mr Parfoot was confronted about the allegations. He denied them. The victim became upset and ran from the house. She went down the street and messaged a male friend on her phone, saying she was scared and that someone had tried to rape her. She thought Mr Parfoot “was lying” but that no one else believed her.

[10]	The victim was found by Ms Cunningham and the victim’s friend’s mother, and brought back to the house, where she was put to bed. At some point after being picked up she again messaged her male friend, told him that matters had been sorted out and asked him not to report what he had been told.

[11]	Evidence for the Crown was given by the victim, adult members of the household, and members of the Police. Mr Parfoot gave evidence in his defence.

[12]	Mr Parfoot said that sometime after going to bed, the victim came into his room either naked or half-naked from the waist up. In his police interview he said he could not remember whether she had pants on. He said that Ms Cunningham began yelling for the victim, at which point the victim left his room and went into the bathroom. The victim told Ms Cunningham she was in the toilet. Mr Parfoot said the victim would have been in his room for less than a minute.

[13]	At trial, Ms Cunningham said  that  she  got  up  at  5am,  having  slept  in  Mr Parfoot’s room, and found that the victim and her friend’s mother were both still drinking at the living room table. She joined them. She said that Mr Parfoot came

down to get a glass of water and that shortly after that, the victim ran upstairs saying she needed to use a mirror. Ms Cunningham soon followed and was told by the victim that the victim was alright and was using the toilet. When the victim returned, she told Ms Cunningham that Mr Parfoot had touched her. Ms Cunningham raised the household, including Mr Parfoot.   She said that said that the victim then accused   Mr Parfoot of raping her, which he denied.

[14]	This observation conflicted with Mr Parfoot’s statement to police later that morning, in which he said that no allegation of rape had been made. Ms Cunningham’s account also conflicted somewhat with the evidence of the victim’s friend’s mother. The friend’s mother said that after midnight, she, the victim and Ms Cunningham had all gone to their own rooms. Later the friend’s mother had heard a crash and was told by Ms Cunningham that the victim was crying and was very upset. The friend’s mother said she tried to comfort the victim but she left the house. She later found the victim and was told by her in the car on the way back to the house that Mr Parfoot had “tried it on”. The friend’s mother said the victim did not elaborate and was sent to bed.

[15]	The Judge recorded that Constable Graham, who had attended the house after the allegations were made, had found the friend’s mother and Ms Cunningham less co-operative  than  expected.  The  Judge  considered  this  was  due  to  the  fact   Ms Cunningham and the other adults had not believed the victim’s account.

[16]	Mr Parfoot was charged on 10 May 2016. Due to various procedural issues, his trial did not commence until 5 March 2018. He was convicted of sexual violation and indecent assault on 7 March 2018, and sentenced to two years and nine months’ imprisonment on 18 May 2018.

Appeal against conviction

Legal test

[17]	The appeal must be allowed if the Court is satisfied that “the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has

occurred” or if a miscarriage of justice has occurred for any reason.3 A miscarriage of justice is defined as:4

any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)	has created a real risk that the outcome of the trial was affected; or

(b)	has resulted in an unfair trial or a trial that was a nullity.

[18]	In Sungsuwan v R, Tipping J explained the “ingredients of a miscarriage of justice” as follows:5

Ordinarily two things must be shown. First, something must have gone wrong with the trial or in some other relevant way. Second, what has gone wrong must have led to a real risk of an unsafe verdict. That real risk arises if there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong. It is, of course, trite law that an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe. The presence of a real risk that this is so will suffice.

[19]	The Court of Appeal stated in Gotty v R6 that where a challenge is made to a Judge’s findings of fact, the principles in R v Owen apply, namely:7

(a)	The appellate court is performing a review function, not one of substituting its own view of the evidence.

(b)	Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example.

(c)	The weight to be given to individual pieces of evidence is essentially a jury function.

(d)	Reasonable minds may disagree on matters of fact.

(e)	Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.

(f)	An appellant who invokes s 385(1)(a)[8] must recognise that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or

3	Criminal Procedure Act 2011, s 232(2).
4	Section 232(4).
5	Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
6	Gotty v R [2017] NZCA 528 at [14].
7	R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [13].
8	Replaced by s 232 of the Criminal Procedure Act 2011, but the new section does not materially change the approach to conviction appeals: Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [56].

respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.

Has a  miscarriage of justice resulted  from  the  District Court’s  failure to  allow  Mr Parfoot’s application for a jury trial?

[20]	The offending occurred in early February 2016. Mr Parfoot first appeared before the Court on 10 May 2016. At that time, he was represented by a duty lawyer. On 31 May 2016 his lawyer, Mr Dodds, appeared for him. A not-guilty plea was entered and jury trial elected.

[21]	After several adjournments, the matter came before Judge Harvey at callover on 22 September 2016. Mr Parfoot was again represented by Mr Dodds. Among other things, the Judge recorded that there may be an application for Judge-alone trial. At a further callover on 1 December 2016, Judge McDonald recorded that bail was to continue until 24 January 2017, to see if Mr Parfoot was to elect trial by Judge-alone. Mr Parfoot’s personal attendance was excused from each of these appearances.

[22]	On 24 January 2017, Mr Dodds appeared and advised that Mr Parfoot “elected” trial by Judge-alone. Mr Parfoot’s appearance on that date had been excused. As Judge Collins noted in his later Minute on this issue, the correct procedure was to vacate the earlier election for trial by jury and grant the application for trial by Judge-alone.9 Regardless of the wording of the order, however, the matter began to progress to a Judge-alone trial.

[23]	Parallel to these District Court appearances, Mr Dodds was corresponding with Mr Parfoot as to his instructions. Mr Parfoot has waived privilege in his correspondence with Mr Dodds. On 22 September 2016, the date of the callover before Judge Harvey, Mr Dodds said to Mr Parfoot that “it may well be unusually a case where it would be best to run the trial in front of a Judge-alone”. After the callover of 6 December 2016, he said, “There are still issues to resolve as to your phone recorded interview and whether you should change your election from trial by jury to trial by Judge-alone”. Following the callover of 24 January 2017, at which the

9	R v Parfoot DC Kaikohe CRI-2016-027-635, 9 November 2017 [Minute “1” of Judge RJ Collins] at [10].

“election” of a Judge-alone trial was made, Mr Dodds wrote to Mr Parfoot on 1 February 2017, saying, “In accordance with your instructions and on your behalf, I elected a Judge-alone trial”.

[24]	Mr Dodds unfortunately had health issues that forced him to cease acting.   Mr Parfoot’s case was then transferred to Mr Fairley, who was instructed around May or June 2017. Ultimately, however, leave was given for Mr Fairley to withdraw. Mr Fairley’s withdrawal resulted in the  trial  date  being  adjourned  from  November 2017 until March 2018.

[25]	Before  he  withdrew  as  counsel,  Mr Fairley   made   an   application   on Mr Parfoot’s behalf to vacate the election for a Judge-alone trial and return to the previous election of a trial by jury. The application came before Judge Collins. The central issue was whether Mr Dodds had been instructed to elect a trial by Judge-alone on Mr Parfoot’s behalf. Judge Collins observed that if no instructions had been given, the election would be “effectively void” and the application for a jury trial should be granted. Conversely, if Mr Dodds had acted with instructions, Judge Collins observed that under s 51 of the Criminal Procedure Act 2011, no “change of circumstances” had occurred that could justify the application being granted. The rationale for the procedure in s 51, the Judge explained, was to ensure a defendant could not elect a jury trial “at the eleventh hour” in order to delay resolution of the charges.

[26]	Judge Collins received an affidavit from Mr Dodds, and both Mr Dodds and Mr Fairley gave evidence before the Judge and were cross-examined. Judge Collins described Mr Dodds as “an extremely experienced trial lawyer”, who impressed him as being “a calm, considered and careful person”. He ultimately accepted Mr Dodds’ account of what occurred, for the following reasons:10
[18]	What is significant is that Mr Dodds recorded in writing to Mr Parfoot that in accordance with his instructions and on [Mr Parfoot’s] behalf [Mr Dodds] elected a Judge-alone trial. It would indeed be absolutely extraordinary for a man who was at that point looking to continue in a client/counsel relationship to have taken that step without instructions and then report it to the client that he did have instructions to do that if that had in fact not been the case.

10	R v Parfoot, above n 9.

[19]	So, at all points or at all material stages the Court record accords with Mr Dodds’ reporting to Mr Parfoot and what is accepted by Mr Parfoot in evidence is that when he received those letters he did not challenge Mr Dodds about it. So, for example, when Mr Parfoot appeared on 22 September, and of the three callovers that I have talked about this is the one occasion he did appear, the Judge has made a note on the Court file that Judge-alone trial is to be discussed. The obvious discussion between the bench and the bar was in the presence of Mr Parfoot.

[20]	Mr Dodds has then reported, “It may well be unusually a case where it would be best to run the trial in front of a Judge-alone rather than a jury,” and that could not be clearer language. … Mr Parfoot says that he never gave instructions to Mr Dodds on 24 January to vacate his election to jury trial. I do not accept his evidence in that regard. It just is not consistent with all the objective material before me.

[27]	The Judge concluded:

[21] So, the conclusion that I come to is that when Mr Dodds applied to vacate the election to jury trial before Judge Harvey on 24 January 2017 he did so with full instructions. He had foreshadowed the matter several months earlier. On his own evidence it was an exceptional step to take. I accept his evidence when he says that he would never have taken such an exceptional step if he did not have the appropriate instructions. Yes, he did not have written instructions in late January to do that but the law does not require him to have written instructions. That is just simply best practice in that regard. It is best practice encouraged by the Court of Appeal to in some way stem the ever-increasing tide of appeals to the Court of Appeal where people say that their lawyers did not act in accordance with their instructions.

[28]	Judge Collins accordingly declined to grant the application to proceed to trial by jury. The trial proceeded before a Judge-alone.

[29]	Mrs Thode submitted that ss 51 and 53 of the Criminal Procedure Act, which govern elections as to the mode of trial, must be read in conjunction, and consistently with, the right to be tried by jury in the New Zealand Bill of Rights Act 1990.11 She submitted that under s 118 of the Criminal Procedure Act, Mr Parfoot was required to be present at the callover hearing at which the election was made and he had not sought to be excused. There is no direct evidence (such as emails or file notes) supporting Mr Dodds’ claim that he had authority from Mr Parfoot to change his election as to mode of trial. The Judge was wrong, Mrs Thode submitted, to accept Mr Dodds’ evidence that he did have such instructions. Given the lack of written instructions, Mr Parfoot’s evidence that he had always wanted a jury trial, and the fact that he was

11	New Zealand Bill of Rights Act 1990, s 24(e).

not in attendance when the election was made, the Judge should have preferred the evidence of Mr Parfoot. The interests of justice favoured granting the pre-trial application for a jury trial.

[30]	The Crown submitted that this appeal is not an opportunity to simply re-run the arguments advanced by Mr Parfoot (but rejected by the District Court) at the pre-trial hearing. This is an appeal on miscarriage of justice grounds. Mr Parfoot has failed to show, however, that proceeding by way of a Judge-alone trial created a real risk that the outcome of the trial was affected or has resulted in an unfair trial. Even if the Court were to entertain the merits of the application, there had been no change of circumstances that would have justified granting the pre-trial application for a jury trial.

[31]	In my view, this ground of appeal must fail, for the following reasons.

[32]	First, a key aspect of Mr Parfoot’s challenge is against Judge Collins’ factual finding that Mr Dodds acted under instructions. I have not been persuaded the Judge erred in that finding. Mr Dodds was found to be a credible witness and his evidence was supported (albeit indirectly) by contemporaneous correspondence as well as the callover Minutes, as summarised above.

[33]	Mrs Thode accepted that there were no changed circumstances that could have justified granting the application if the Judge was correct in concluding that Mr Dodds had indeed been acting under instructions. Something more is  required  than  “simply a change of heart”.12

[34]	Further, the language of s 118(2) of the Criminal Procedure Act does not require the defendant to seek to be excused in order for that to occur; “the court excuses the defendant from attending the hearing”.13 It is clear from the procedural history I have outlined that Mr Parfoot seldom attended callover hearings. Once it is accepted that Mr Dodds was acting under instructions, there was no prejudice to Mr Parfoot in his failure to appear at the callover.

12	See Smith v Police [2016] NZHC 2796 at [19].
13	Criminal Procedure Act 2011, s 118(2)(a).

[35]	Finally, Mr Parfoot had an opportunity to appeal the pre-trial ruling before the trial commenced.14 He did not do so.  It must therefore be shown on this appeal that  a miscarriage of justice has resulted from the mode of trial. I have not been persuaded that it has.

Alleged errors by trial Judge

[36]	The second ground of appeal is that the trial Judge, Judge Gibson, erred in fact and law in entering a conviction on each charge.

[37]	Judge Gibson gave an oral judgment following the trial. He described the “sole issue” as the actus reus — whether Mr Parfoot had in fact done what was alleged by the victim.15 This turned essentially on issues of credibility. The Judge recorded that:

[39] In the end, this case comes down to credibility and reliability of principal witnesses, the complainant and defendant, measured against the backdrop of the Crown having to prove the elements of the two charges to the required standard of proof, beyond reasonable doubt.

[38]	The Judge preferred the victim’s evidence to that of Mr Parfoot. He gave the following reasons:

[50] I accept the complainant’s account. It is inherently plausible, in the sense the Court of Appeal said in E v R, as otherwise I would have to believe a 14 year old girl chose to go naked or half naked into the bedroom of a late middle-aged man she barely knew, a scenario that, if it was deliberate and it was never contended otherwise, seems hardly plausible.

…

[52]	Essentially what the case boils down to is consistency of complaint measured against consistency of denial with an explanation that I find implausible.

[53]	The defendant is not under any obligation to offer an explanation for the complaint, as I have said, but I find the account advanced by the defendant implausible and it is at odds with the complainant’s evidence, and I do not accept the defendant’s account. It follows I do not accept his denials.

14	Criminal Procedure Act 2011, s 296; Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321 at [58].
15	Conviction Judgment, above n 1, at [17].

[39]	Having resolved that main contested issue, the Judge found that the Crown had proved the requisite elements of the actus reus and mens rea for the offence of sexual violation.16 He also accepted that the Crown had proved the elements of the indecent assault (touching the victim’s breasts). The defendant was convicted of both charges and given a strike warning.

[40]	Mrs Thode submitted that the Crown failed to discharge its duty under s 92 of the Evidence Act 2006. That section provides:

92	Cross-examination duties

(1)	In any proceeding, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.

(2)	If a party fails to comply with this section, the Judge may—

(a)	grant permission for the witness to be recalled and questioned about the contradictory evidence; or

(b)	admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence; or

(c)	exclude the contradictory evidence; or

(d)	make any other order that the Judge considers just.

[41]	In particular, Mrs Thode argued that Mr Parfoot was not challenged about his denial that he “never touched that girl” and it was not expressly put to him that he was lying, mistaken or confused about his denial of the charges.

[42]	The Crown submitted that the Judge’s findings of credibility did not result in any error regarding the burden of proof, because the victim’s account was accepted positively. Further, the Crown’s approach to putting the case to Mr Parfoot was

16 At [56] the Judge recorded that he accepted “the Crown has established to the required degree of proof that the defendant reasonably believed [the victim] was consenting”. I consider this was a clear typographical error that ought to have been corrected by the slip rule. It is clear from the surrounding context that the Judge meant the Crown had proved that the defendant did not reasonably believe the victim was consenting. No suggestion otherwise has been made on the appeal.

entirely consistent with its duties under s 92 of the Evidence Act, and appellate court elaboration on that duty.

[43]	In R v Soutar the Court of Appeal  stated that  the  purpose of the duty is  “one of fairness” but it is not absolute; “[n]or does it need to be slavishly followed where the witness is perfectly well aware if his or her evidence is not accepted on a particular point”.17

[44]	A failure to cross-examine in accordance with this duty may mean “the trier of fact is denied the opportunity to assess from all perspectives conflicting recollections of events”18 but I do not consider that was the case here. The Judge was undoubtedly aware that Mr Parfoot denied the offending in its entirety; he said:19

[45]	The defendant of course carries no onus and is under no obligation to attempt to explain why it is that the complainant made what he considers to be a false complaint, as that in effect is his contention. He said in his evidence that he never touched the complainant and he said that she came into his bedroom in the way I have already related.

[45]	I accept the Crown’s submission that Mr Parfoot had ample opportunity to deny the offending, and that he did so in no uncertain terms. Despite the Crown not explicitly cross-examining him with reference to his denial that he touched the victim, no miscarriage of justice has resulted.

[46]	The final argument raised by Mrs Thode was that the Judge had erred in his approach to the burden of proof, because the Judge considered the appellant’s explanation “hardly plausible” and this led him to find the victim’s account more plausible. The Judge therefore failed to have proper regard to the burden of proof.

[47]	I do not accept this interpretation of the Judge’s decision. First, throughout the judgment he reminded himself that the onus was at all times on the Crown to prove all matters beyond reasonable doubt.20 Second, the Judge observed that the case essentially turned on a contest of credibility: “consistency of complaint measured

17	R v Soutar [2009] NZCA 227 at [27].
18	R v S (CA369/01) (2002) 19 CRNZ 442 (CA) at [19].
19	Conviction Judgment, above n 1.
20	See [16], [39], [54]–[56] and [58]–[60].

against consistency of denial”.21 The Judge correctly observed that Mr Parfoot was not obliged to offer  any explanation.  But  he  was  entitled  to  take  into  account Mr Parfoot’s explanation in assessing his credibility. He found the victim’s account plausible. That was not simply because Mr Parfoot’s explanation was implausible, but because the Judge found the victim to be a credible witness and accepted her account. This amounted to a finding of fact that the victim’s version of events was true. The Crown had accordingly discharged its burden of proof.

[48]	The conviction appeal accordingly fails.

Sentence appeal

[49]	The sole ground of appeal on the sentence appeal is that the sentence imposed was manifestly excessive.

[50]	Mr Parfoot is entitled to appeal his sentence as of right.22 His appeal must be allowed if I am satisfied that:23

(a)	for any reason, there is an error in the sentence imposed on conviction; and

(b)	a different sentence should be imposed.

[51]	A sentence that is manifestly excessive will satisfy that statutory test. The focus of the inquiry “is on the sentence imposed rather than the process by which the sentence is reached”.24 In R v Monkman, the Court of Appeal described the inquiry into whether the sentence was “manifestly excessive” as follows:25

[6]    Whether a sentence can be said to be manifestly excessive turns on    the maximum sentence prescribed by law for the offence; the level of sentencing customarily observed with respect to that offence; the place which the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to the particular kind of offending) …

21	At [52].
22	Criminal Procedure Act 2011, s 244.
23	Section 250(2).
24	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
25	R v Monkman CA445/02, 3 March 2003.

[52]	In this case the sentencing Judge took the sexual violation offence as the lead offence, which carries a maximum sentence of 20 years’ imprisonment. The Judge had regard to the tariff case for offending of that kind, R v AM, and accepted that the offending fell within band 1, which indicated a starting point between two and five years’ imprisonment.26 The Judge was not prepared to accept that the starting point should be at the very bottom of the band, two years, because of the vulnerability of the victim due to the age difference between Mr Parfoot, who was 56 at the time of the offending, and the victim, who was 14. A further factor supporting the view that the victim was vulnerable at the time of the offending was that the victim was away from her normal environment and a guest in Mr Parfoot’s home. The Judge considered the latter point gave rise to a breach of trust, although he accepted it was “not a breach in the traditional sense”.27   The Judge considered the age difference in  another case,    R v Neroj, as less serious, despite the assault in that case being more serious.28 He therefore adopted a starting point of three years’ imprisonment.

[53]	The Judge considered a discount for previous good character was warranted. Due to Mr Parfoot’s previous (though historical) convictions, a lower discount than otherwise would be available was applied, namely three months’ imprisonment. In the absence of a guilty plea, and in light of a continued denial of the offending, no further reductions were given. The final sentence was two years and nine months’ imprisonment. Six months’ imprisonment was imposed concurrently for the indecent assault charge.

[54]	Mrs Thode submitted that the Judge erred in his assessment of vulnerability because the age discrepancy between Mr Parfoot and the victim was inherent in the charges he faced, and being away from home did not make the victim vulnerable. She also argued that the Judge erred in finding there was a breach of trust, given he had earlier acknowledged the victim was a “stranger” in Mr Parfoot’s home.29 Having regard to those errors, she submitted that the starting point adopted was too high.

26	Sentencing Notes, above n 2, at [14]; R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
27	Sentencing Notes, above n 2, at [12].
28	At [17]. R v Neroj [2008] NZCA 184.
29	Sentencing Notes, above n 2, at [12].

[55]	Mrs Thode submitted that Mr Parfoot’s circumstances and the lower level of offending are sufficient to rebut the presumption of imprisonment for offending of this kind.30 The least restrictive outcome that would be appropriate, she submitted, would be one of home detention.31 Mr Parfoot’s family circumstances, availability of employment, lack of relevant prior convictions, character references and history of good compliance with previous sentences are all said to support home detention.

[56]	The Crown supported the sentence imposed. Ms Thomson submitted that there were at least two aggravating factors present (vulnerability and breach of trust). These took the case above the lowest level of Band 1. The Judge nonetheless restricted himself to the lower half of the band. Ultimately, the Crown submits imprisonment is a serious consequence for Mr Parfoot, but nothing in his personal circumstances displaces the presumption that imprisonment should follow for a sexual violation conviction.

[57]	Mrs Thode’s submission that age discrepancy is inherent in the offence with which Mr Parfoot was charged is incorrect. Mr Parfoot committed sexual violation by unlawful sexual connection.32 The maximum sentence for that offence is 20 years, regardless of the age of the victim. There are other offences in the Crimes Act 1961 where age disparity is relevant to the offence,33 but Mr Parfoot was not convicted of those offences.

[58]	In R v AM, the Court of Appeal explained that “relationships of trust may arise where a person has assumed some responsibility in relation to the victim, for example, the neighbour who regularly babysits the child or the school sports coach”.34 Both examples given suggest a regularity of relationship and that the person has undertaken a position of responsibility in relation to the particular victim. I accept that the present circumstances do not fall within the classic “breach of trust” scenario.

30	Crimes Act 1961, s 128B(2).
31	Sentencing Act 2002, s 8(g).
32	Crimes Act 1961, s 128B and 128(1)(b).
33	For example, sexual conduct with child under 12 (s 132); sexual conduct with young person under 16 (s 134).
34	R v AM, above n 26, at [50].

[59]	I consider the victim’s vulnerability, however, to be a significantly aggravating factor. The victim  was  only  14,  and  was  staying  in  the  home  of  Mr Parfoot, a stranger. The adults present had allowed the complainant to drink alcohol with them, over a period of hours. It appears that the victim was likely intoxicated. There would undoubtedly have been a physical disparity between her and Mr Parfoot. For these reasons, even if no breach of trust element was present, I do not consider the Judge erred in his assessment of the starting point. The first band for unlawful sexual connection in R v AM was described as covering:35
… offending at the lower end of the spectrum. Where none of the factors referred to above which increase the seriousness of the offending is present a starting point at the bottom end of this band would be appropriate. Where one or more of these factors is present to a low or moderate degree, a starting point closer to the top of the band would be required.

[60]	Vulnerability was a factor that increased the seriousness of this case above the bottom of the band. I consider the three-year starting point was within the acceptable range. The end sentence was accordingly not manifestly excessive, and Mr Parfoot has not rebutted the presumption that the appropriate sentence in all the circumstances is one of imprisonment.

[61]	For the reasons given, the appeal against sentence also fails.

Result

[62]	The appeal against conviction is dismissed.

[63]	The appeal against sentence is dismissed.

Katz J

35	At [114].