Alsop v The Queen - [2019] NZHC 697

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alsop v The Queen

Details

AGLC: Alsop v The Queen [2019] NZHC 697
Case: [2019] NZHC 697
Decision Date: 4 April 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant Lance William Alsop appeals his sentence for convictions related to indecent assault and grooming of two minor siblings. The appellant argues that the District Court Judge erred by not imposing a sentence of home detention instead of imprisonment. The central legal issue is whether the District Court erred in deciding that the proposed address for home detention was unsuitable, thereby precluding such a sentence.

The appellant contends that the District Court incorrectly considered the appellant's lack of insight and the typicality of imprisonment for such offenses when determining the suitability of the address. He argues that the address, which is the home of his parents, is suitable as he has been on strict bail conditions there without incident. The respondent, however, asserts that the Judge correctly found the address unsuitable due to the appellant’s troubled upbringing and history of abuse at that location.

The Court concludes that the District Court Judge did not err in finding the proposed address unsuitable for home detention. The Court affirms that the suitability of the residence for home detention must be assessed in light of the purposes and principles of sentencing, including deterrence, denunciation, accountability, and rehabilitation. Given the appellant's history of abuse and neglect at the proposed address, and his lack of full appreciation of the seriousness of his offending, the Court finds that the Judge’s decision was justified. The Court also notes that the proximity of the address to parks and schools, while not a disqualifying factor in itself, supports the broader assessment of the address’s suitability. Thus, the appeal is dismissed, and the original sentence of 19 months' imprisonment is upheld.

Orders