Alsop v The Queen
[2019] NZHC 697
•4 April 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-409-20
CRI-2019-409-21 [2019] NZHC 697
BETWEEN LANCE WILLIAM ALSOP
Appellant
AND
THE QUEEN
Respondent
Hearing: 4 April 2019 Appearances:
J Lucas for the Appellant
J H Whitcombe and C C White for the Respondent
Judgment:
4 April 2019
JUDGMENT OF COOKE J
[1] The appellant has been convicted of indecent assault on a person under 16 under s 134(3) of the Crimes Act 1961, meeting a young person after sexual grooming under s 131B(1)(a)(i) and (b)(i) of the Crimes Act 1961, and two representative charges of exposing young people to indecent material under s 124A of the Crimes Act 1961. He was sentenced by Judge Gilbert to 19 months’ imprisonment.1 The appellant appeals that decision on the basis that the Judge erred by not imposing a sentence of home detention in accordance with s 15A of the Sentencing Act 2002.
Factual background
[2] The appellant is 35 and was a family friend of the two victims. The victims are a sister and brother, and were aged 13 and 12 respectively at the time of the offending.
1 R v Alsop [2018] NZDC 26386.
ALSOP v R [2019] NZHC 697 [4 April 2019]
[3] On 13 October 2017 the police executed a search warrant at the appellant’s home address and seized various digital devices. It became apparent from material stored on those devices that in July 2017 the female victim was a passenger in the appellant’s vehicle and dropped her phone in the footwell. The appellant offered to ring the phone in order to help locate it and accordingly obtained the victim’s number.
[4] Once he had the victim’s number, the appellant started texting her daily. He referred to her as his girlfriend, offering to buy gifts and telling her he loved her. She did not share those feelings and felt uncomfortable about the messages. Between 27 August and 13 October 2017, the appellant and the victim exchanged over 1300 instant messages via Facebook, some of which included a video component, as well as over 1800 text messages. The District Court Judge calculated that this involved an average of 60 messages per day.
[5] The appellant repeatedly asked for intimate photographs, and sent photographs of his penis and videos of himself masturbating. Between 1 and 10 October 2017, the victim, at his request, sent him five intimate photographs, one of her in her underwear and four depicting her genitalia.
[6] Between August and October 2017, the appellant arranged to meet the victim on four occasions at a park near her address and on a further occasion at her school. At each meeting he hugged her and tried to kiss her, to which she turned away. On the last meeting in October he put his hand up her top, touching her breast. He attempted to place his hands in her pants, but she squatted down to prevent him doing so. She tried to get away and told the appellant “no”, but he held onto her before giving up.
[7] In addition, the appellant befriended the first victim’s 12-year-old brother. They spent time together at the appellant’s address on four occasions in mid-late 2017, where the appellant showed him pornographic material on a computer and encouraged him to look at pornographic websites.
[8] The appellant sought a sentence indication on 17 October 2018. The District Court gave an indication of an end sentence of 19 months’ imprisonment, and reserved the position of home detention pending the consideration of a pre-sentence report and
any other relevant sentencing information. The appellant accepted the indication and entered guilty pleas.
District Court decision
[9] Judge Gilbert sentenced the appellant on 14 December. The Judge concluded that this was very serious offending. He adopted a starting point of two years and four months.
[10] The Judge discounted that sentence by four months to account for the appellant’s personal circumstances, including neglect and sexual abuse in his early life. A further five months’ credit was given for his guilty plea. This resulted in a sentence of 19 months’ imprisonment.
[11] The Judge considered that home detention might be appropriate in his sentencing indication, but would be dependent on the reports provided at sentencing. Those reports included a victim impact statement, a restorative justice report, a report under s 38 of the Criminal Procedure (Mentally Impaired Person) Act 2003 and a pre- sentence report. The pre-sentence report and s 38 report were the key documents the Judge considered when determining whether home detention should be granted.
[12] The pre-sentence report noted that the appellant had no real understanding of the extent or impact of his offending. The appellant had stated that his interactions with the primary victim were a “two-way-street”. The s 38 report similarly noted that the appellant lacked insight into his offending. The report writer stated the appellant has a clear predilection towards young females, and considered there was an ongoing risk of similar offending, though that could be moderated with treatment. The appellant was found to be prepared to engage in treatment and did show some remorse when challenged about some of his behaviour.
[13] Judge Gilbert determined that home detention was not appropriate for a series reasons including principally:
(a)The proposed address occupants were the appellant’s parents. The reports suggested his parents had contributed to a “grossly
unsatisfactory environment that led to a childhood of neglect and abuse” prior to being placed in foster care. The Judge had given a sentencing discount for this reason. He considered it inappropriate to place the appellant back in that home.
(b)The address was near to parks and schools. The Judge noted that this factor alone would not prevent home detention being granted but that it underlined that the address was not entirely appropriate.
(c)There was a lack of insight on the appellant’s behalf and he continued to not fully accept the sexual offending despite his guilty plea.
[14] Judge Gilbert also noted that cases of this nature are ordinarily met with a term of imprisonment. He considered the appellant was “right on the cusp… as to whether or not home detention even at the best address in the world would adequately meet the purposes and principles of sentencing”. The Judge referred to the fact that there were not favourable reports, and given the proposed address he concluded that home detention was simply not feasible. However, the Judge granted leave for the appellant to apply for home detention should a more suitable address become available.
Principles on appeal
[15] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 In Tutakangahau v R the Court of Appeal endorsed the approach that the “…court will not intervene where the sentence is within the range that can be properly be justified by accepted sentencing principles”.3 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
4 Ripia v R [2011] NZCA 101 at [15].
Appellant’s submissions
[16] Mr Lucas contends that Judge Gilbert erred in concluding the proposed address was not suitable. He submits that the Judge incorrectly took into account the appellant’s lack of insight and the fact that imprisonment is the usual sentence for such offending, when those factors do not play a part in suitability of address. He further submits that the Judge should not have viewed the fact that the address is near several parks and schools as a negative factor because the Judge had already commented that it would not stop the appellant from serving home detention there.
[17] In regard to the address being an unsatisfactory environment for the appellant as a child, Mr Lucas submits that this does not mean the address is unsuitable for home detention now. The Judge failed to give regard to the fact that the appellant has been remanded on strict bail conditions at that address for over a year, which was consented to by the police and the Crown. Mr Lucas also notes the Judge’s failure to refer to a comment in the s 38 report that the living arrangement was “working well”.
[18] Mr Lucas submits that the appellant did not breach his bail conditions at the address and stayed away from the victims. He contends that this relevant factor should have been considered by the Judge, as it shows an ability for the appellant to successfully serve a sentence of home detention at that address.
[19] Finally, Mr Lucas notes that the appellant has spent three and half months in custody, which should be deducted from any subsequent sentence of home detention. He submits that a sentence of six months’ home detention with release conditions would therefore be appropriate.
Respondent’s submissions
[20] Mr White, for the respondent, submits that Judge Gilbert did not err in his decision that the proposed address was unsuitable.
[21] Mr White focuses on the appellant’s troubled upbringing at the hands of his biological parents, who are the occupants at the proposed address. He notes the appellant has said that he suffered violence and neglect from his parents, as well as
sexual abuse from his uncle. The s 38 report comments that it is “unclear to what extent his relationship with his parents has repaired from the earlier difficulties”. Mr White submits that given this background, home detention at the appellant’s parents’ address would be inappropriate, and the Judge was correct to find as much.
Analysis
[22] A sentence of home detention may only be imposed if the residence is suitable (s 80A(2)(a)(i) of the Sentencing Act 2002). The question of suitability forms part of the overall assessment to be made by the sentence Judge in light of the principles and purposes in ss 7 and 8. A line of decisions of the Court of Appeal have articulated the approach that should be taken in the consideration of a sentence of home detention under s 15A of the Sentencing Act. The sentence of home detention has not rendered a short-term sentence of imprisonment redundant, and both remain a distinct sentencing option calling for specific analysis.5 What is called for is the exercise of the discretion that gives effect to the purposes and principles of sentencing recorded in ss 7 and 8 of the Act.6 The decision whether home detention will meet the objectives articulated in the Act is a strictly evaluative exercise.7 It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.8 There is nothing in the Sentencing Act to suggest a presumption for or against commuting to home detention, either generally or in respect of particular types of offending.9 In Manikpersadh v R the Court of Appeal said:10
[12] We agree with counsel for the respondent’s assessment that the proper approach of an appellate Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing, as in other sentencing appeals to this Court, on the identification of error, if any, in the court below”.
…
[14] We endorse the observations of William Young J in Vhavha that in exercising the discretion whether to commute a sentence of imprisonment to home detention, those ss 7 and 8 purposes and principles of sentencing, relevant to the particular case, must be considered by the sentencing judge.
5 Heta v R [2012] NZCA 267 at [21].
6 Osman v R [2010] NZCA 199; R v Vhavha [2009] NZCA 588 at [29].
7 R v D [2008] NZCA 254 at [66].
8 James v R [2010] NZCA 206.
9 Manikpersadh v R [2018] NZCA 452 at [10]; R v Vhavha, above n 6.
10 Manikpersadh v R, above n 9, at [12], [14] and [15].
[15] Section 7 deals with the purposes of sentencing. It includes deterrence, denunciation, accountability, promoting a sense of responsibility, providing for the interests of the victim and the protection of the community. However, it also includes assistance to an offender’s rehabilitation and reintegration.
[23] The suitability of the residence is not a decision made completely independently of the ss 7 and 8 purposes and principles. It all forms part of the required assessment. Applying the above principles I see no error in the District Court Judge’s approach. This was very serious offending involving predatory behaviour associated with two children. The principles of deterrence, denunciation, accountability, promoting a sense of responsibility and providing for the interests of the victim and the protection of the community must be given proper emphasis. As the Judge held, offending of this kind would normally give rise to a sentence of imprisonment, and the case was right on the borderline in terms of whether home detention could be appropriate at all given its seriousness. A particularly relevant feature was the lack of full appreciation by the appellant of the nature and seriousness of the offending referred to in the pre-sentence and s 38 reports. A highly compelling proposal would have been necessary before home detention could even be open for consideration.
[24] Home detention might still be considered appropriate in light of the purposes of assisting rehabilitation and reintegration under s 7(1)(h). Mr Lucas emphasised reports that the appellant was beginning to properly accept his offending, and that treatment outside prison was likely to be more effective. Rehabilitation was given weight by the District Court Judge. But here the significance of that factor is diminished by the fact that this address is the address which gave rise to the violence and neglect from the appellant’s parents, and the sexual abuse from his uncle. Whilst that occurred in the past, it nevertheless impacts on the appropriateness of this address for home detention for this kind of offending. It is the very environment which may have contributed to the propensity to offend. The Judge also noted the three month rehabilitation course available in the custodian setting, and the subsequent availability of release conditions relating to community based treatment. The fact that the s 38 report indicated that the current living arrangements were working well, and that EM bail had taken place without incident are factors, but they do not outweigh the negative aspects of the address assessed by the Judge.
[25] I do not accept the appellant’s submission that the lack of insight by the appellant, and the fact that imprisonment is the usual sentence were not factors to be taken into account in assessing the suitability of home detention at the address. The nature of the proposed address is highly relevant to whether the sentence of home detention is appropriate. The factors are all inextricably inter-related given the need to assess whether home detention at the proposed address was an appropriate sentence in light of the ss 7 and 8 principles. There accordingly is no error in this respect.
[26] The fact that the address is near several parks and schools might not by itself be a significant factor, as the conditions of home detention should address any risk of reoffending that might be associated with those areas. But this factor may be indirectly relevant in considering other factors such as denunciation and accountability. They can involve an assessment of reasonable community expectations in light of the harm done to the community, as well as the victims (s 7(1)(a)). The Judge indicated that this was a factor that would not have prevented home detention in itself, and I conclude that it was permissibly taken into account as part of the broader assessment of the factors.
[27] For these reasons I see no error in the approach of the District Court Judge. Leave to appeal out of time is granted, but the appeal is dismissed.
Cooke J
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