BETWEEN RICKY LEIGH SMITH Appellant AND THE CROWN Respondent
[2023] NZHC 3731
•15 December 2023
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2023-463-95
[2023] NZHC 3731
BETWEEN RICKY LEIGH SMITH
Appellant
AND
THE CROWN
Respondent
Hearing: 5 December 2023 Appearances:
D Hall for the Appellant
A Maino for the Respondent
Judgment:
15 December 2023
JUDGMENT OF HARVEY J
[on appeal against sentence]
This judgment is delivered by me on 15 December 2023 at 4 pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors / Counsel: Douglas Hall, Rotorua Crown Solicitor, Rotorua
SMITH v THE CROWN [2023] NZHC 3731 [15 December 2023]
Introduction
[1] Ricky Smith pleaded guilty to a charge of doing an indecent act on a young person1 after accepting a sentence indication provided by His Honour Judge Snell on 4 May 2023. On 18 August 2023, the appellant was sentenced by Her Honour Judge M MacKenzie to 18 and a half months’ imprisonment.2
[2]Mr Smith now appeals that sentence on the grounds that the Judge:
(a)was plainly wrong in declining home detention;
(b)gave too much weight to a finding of a lack of remorse; and
(c)gave insufficient weight to the appellant’s personal factors.
[3] The Crown oppose the appeal. Counsel submitted that the Judge was entitled in the exercise of her discretion to impose the sentence that she did as it was well within the appropriate range for the offending.
The offending
[4] The appellant had been in a casual relationship with the victim’s mother for some time. He was a father figure to the victim.. In November 2020 she was staying with the appellant at his house and indicated that she wished to go to bed. She gave him a long hug and while doing so the appellant rubbed her back. He then put his hand through her sleeve under her playsuit and bra and squeezed her breast and played with her nipple. He also placed both hands in the pockets of her jeans, squeezing her bottom and rubbing her inner thigh.
[5] The victim called her mother to be picked up but because she was unwell the appellant’s mother returned her home.
[6] Mr Smith pleaded guilty after accepting a sentence indication provided by His Honour Judge Snell on 4 May 2023.
1 Crimes Act 1961, s 134(3); maximum penalty seven years’ imprisonment.
2 R v Smith [2023] NZDC 19639.
District Court decision
[7] From the outset Judge MacKenzie noted that Judge Snell had already indicated the possibility of an electronically monitored sentence while highlighting that he did not make any promises given that the ultimate sentence would be dependent on a range of factors. After setting out the facts, the Judge recorded that when the allegations were raised with the appellant he denied them. Instead, the appellant said that he may have accidentally touched her during the hug.
[8] While the Judge noted that in terms of previous offending, the appellant had a long history, none of that offending was similar to the charge then before the Court.
[9] Regarding aggravating factors, the Judge underscored the significant breach of trust and the age of the victim. She was 12 at the time and therefore vulnerable. Added to that was the isolation, given that the appellant had taken the victim to his home and she was therefore in his care at the time. In addition, the Judge referred to the nature and intrusiveness of the touching—including of the victim’s breast and nipple, being skin on skin—which was therefore an aggravating feature. The victim had been significantly impacted by the offending which was also a relevant consideration.
[10] In terms of starting point, the Judge considered 22 months was justified. She then set the guilty plea credit at 10 percent. There was also no uplift because there was no comparable offending.
[11] The Judge recorded that the appellant was “not remorseful at all.”3 She confirmed that in conversations with the probation report writer, the appellant attempted to downplay the offending and disagreed with any suggestion of sexual touching. The Judge noted that the appellant continued to maintain his denial which she found spoke against remorse. She then confirmed her view that there was not one shred of tangible evidence of remorse and that, in fact, “the opposite is the case”.4
[12] The Judge then referred the arguments by the appellant’s counsel as to his mental fragility and own experience of abuse. She discounted that because there was
3 At [16].
4 At [18].
no expert evidence to support that claim. In the end, the Judge awarded a five percent discount for the appellant’s past trauma. In total, the discounts amounted to 15 percent or three and a half months which the Judge confirmed resulted in an end sentence of 18 and a half months’ imprisonment.
[13] As to the nature of the sentence, the Judge discussed home detention and the relevant considerations surrounding that possibility. What was pivotal for the Judge on the question of converting a sentence of imprisonment to home detention was whether the latter would adequately meet the need for accountability, deterrence and denunciation. In the end, the Judge concluded that home detention was not the least restrictive outcome appropriate in the circumstances. This was because the appellant’s lack of acceptance of responsibility beyond the guilty plea, his lack of insight and remorse meant specific deterrence could only be achieved by a custodial sentence. The Judge also noted the appellant’s history of non-compliance notwithstanding the pro- social support of his mother should home detention be justified.
[14] In short, the Judge concluded that due to the particular circumstances, the need for deterrence outweighed anything else with the result that a custodial sentence was appropriate. The Judge then sentenced the appellant to 18 and a half months’ imprisonment.
Submissions
[15] Mr Hall submitted that the Judge focussed too much on remorse to the point where this issue was considered disproportionately to the other relevant factors. In addition, counsel contended that the Judge failed to properly consider the appellant’s personal circumstances that included him being subjected to sexual abuse. She then failed to have appropriate regard to the appellant’s mental health issues that included evidence of suicidal ideation. Further, Mr Hall argued that the Judge was plainly wrong in failing to properly consider a sentence of home detention in circumstances where it was appropriate to do so based on the facts and evidence relevant to the case.
[16] Ms Maino submitted that the Judge did consider remorse appropriately and concluded that with the appellant denying the offending, contrary to his guilty plea, he demonstrated a lack of insight and therefore undermined his prospects for
rehabilitation. Had the appellant accepted his responsibility and set aside his attempts to diminish this and downplay the nature of the offending, then home detention may have been found to be an appropriate sentence by the Judge. Counsel underscored that the Judge did take account of all the relevant factors and arrived that a sentence that was within the appropriate range for such offending.
Appellate approach
[17] This Court’s approach to sentence appeals is well-settled. For an appeal to be allowed, this Court must be satisfied that there has been an error in the sentence imposed and that a different sentence should be imposed.5 The sentence below must be shown to be manifestly excessive or wrong in principle.6
Discussion
[18] I agree with Ms Maino that the Judge did consider remorse appropriately and correctly concluded that with the appellant denying the offending, despite his guilty plea, this demonstrated a lack of insight. That would ultimately undermine his prospects for rehabilitation. Accepting responsibility is one thing, but demonstrating genuine remorse and insight into the offending is something else again. Moreover, the appellant’s attempt to downplay the offending also speaks to his lack of remorse and insight. In that context, I consider that the alternative version of events relayed to the report writer by the appellant unhelpful to Mr Smith’s appeal.
[19] As the Judge correctly emphasised, the need for deterrence and denunciation in the circumstances of this case were appropriate to emphasise. I do not accept the argument that the Judge, in those principles, failed to take account of all other relevant considerations when imposing the sentence that she did on the appellant.
[20] Moreover, I also accept that the sentence ultimately imposed by the Judge was within range of the possible outcomes she could have arrived at in the exercise of her discretion. While suicidal ideation was also raised by Mr Hall, this too was taken account of by the Judge when assessing the appropriate sentence for the appellant. In
5 Criminal Procedure Act 2011, s 250(2).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].
addition the Judge directed that Mr Smith be assessed by the mental health team in custody.
[21] In short, I am not persuaded that the Judge was plainly wrong in deciding on a term of imprisonment, that she gave too much weight to a finding of a lack of remorse or that she gave insufficient weight to Mr Smith’s personal factors. As a result, I detect no error in the learned Judge’s approach and am unable to discern a reason to interfere with her sentencing.
Decision
[22]The appeal against sentence is dismissed.
Harvey J
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