C v Police
[2020] NZHC 3200
•7 December 2020
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY SECTION 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2020-441-23
[2020] NZHC 3200
BETWEEN C
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 November 2020 Counsel:
J S Jefferson for appellant
J D Bridgman for respondent
Judgment:
7 December 2020
RESERVED JUDGMENT OF DOBSON J
Introduction
[1] The appellant was sentenced in the Napier District Court on 9 October 2020 on two representative charges, one each of an indecent act on a young person between the age of 12 and 16, and one charge of an indecent act on the same young person
C v POLICE [2020] NZHC 3200 [7 December 2020]
whilst the complainant was under 12 years old.1 Those offences carry respective maximum penalties of seven and 10 years’ imprisonment.
[2] The appellant was sentenced to 19 months’ imprisonment by Judge Matenga, who declined to commute the sentence to one of home detention. The appeal is brought on the narrow ground that the Judge was wrong not to transform the short sentence of imprisonment into one of home detention, which had been recommended in the pre-sentence report.
The offending
[3] The appellant exploited opportunities when he could get the complainant on his own to carry out sexual offending against him. The complainant would accompany the appellant to pick up fish and chips and, whilst driving, the appellant would rub the complainant’s penis. On other occasions when they were alone at the appellant’s house, he would approach the complainant from behind and kiss his neck. His contacts included the appellant trying to put his tongue in the complainant’s mouth and reaching into his shorts to play with his penis. When the complainant was a teenager, the appellant would get the complainant to masturbate him. Offending of this type occurred also at the complainant’s home address and during a family holiday in Australia.
[4] In August 2019, the appellant resigned from his job and two days later volunteered a statement to the Napier Police about some aspects of the offending. The offending he acknowledged was a relatively small part of what the complainant eventually described to Police. The appellant also downplayed the volume of offending and stated that the complainant had initiated the conduct between them.
[5] Initially, the complainant declined to co-operate with the Police and wanted nothing to do with the matter. However, when the complainant learned that the appellant claimed that he had initiated the sexual conduct, he was sufficiently disgusted to provide a statement to the Police which reflected more serious offending of a repeated nature than had been acknowledged by the appellant. The complainant’s
1 R v C [2020] NZDC 20557.
disclosures resulted in more serious charges being laid than those to which the appellant initially pleaded guilty, and after discussions to rationalise the extent of the charges, those to which he eventually pleaded guilty were settled upon.
[6] The complainant is now an adult and his victim impact statement reveals that the offending had a serious impact on him, adversely affecting his self-esteem and his dealings with members of his family and latterly with his partner. The depression caused by the offending caused him to take a year off work and he had used marijuana to try and forget what had happened, and needed sleeping pills to get to sleep.
The District Court sentencing
[7] Apart from minor criticisms, Mr Jefferson did not challenge the components of the Judge’s sentencing calculation. The Judge ranked the relative seriousness of the offending as warranting a starting point of 30 months’ imprisonment. From that, the Judge allowed a 25 per cent discount for guilty pleas and 10 per cent for the appellant’s personal circumstances. The mitigating factors under this head included his health issues, his age and lack of previous convictions. The discount of 10 per cent had been reduced from 15 per cent due to the appellant’s stance in minimising his own responsibility and the allegation that the complainant had initiated the contact. The combined 35 per cent discount reduced the starting point of 30 months to 19 and a half months, which was rounded down to 19 months’ imprisonment as the end sentence.
[8] The Judge then considered the prospect of substituting a sentence of home detention. He dealt with it in the following terms:2
I have vacillated over this question. I have decided in the end, Mr [C], that I am not prepared to impose home detention. In my view the purposes and principles of sentencing, as I have set out, require a sentence of imprisonment to acknowledge the significant breach of trust, hold you accountable, to deter and denounce. Your minimising of the seriousness of the offending by placing the blame on [the complainant], just a young boy, shows an unwillingness, in my view, or an inability to accept your role in this and would hinder your prospects of rehabilitation.
2 R v C, above n 1, at [23].
The appellant
[9] The appellant is a 71 year old first offender. He partially volunteered the offending and was claimed by counsel to be remorseful. He pleaded guilty to the rationalised forms of the charges after the complainant made a statement revealing the fuller extent of the offending.
[10] The appellant does not enjoy good health. He has poor mobility and needs to use a walker, had a pulmonary embolism in July 2020 and is diagnosed with a pre- diabetic condition. A medical report from the general practitioner who monitors the appellant at Hawke’s Bay Prison lists 18 long-term medications prescribed for him.
[11] The pre-sentence report confirmed the suitability of the appellant’s residential address and the consent of the co-occupant to the appellant serving a sentence of home detention there.
Arguments on appeal
[12] Mr Jefferson respectfully described the Judge’s discounts for the appellant’s previous unblemished record and poor health as “miserly”. He submitted that in comparable decisions, a greater discount had been allowed to recognise the greater difficulty for an elderly person in poor health in serving a sentence of imprisonment.3 In the assessment as between a term of imprisonment and home detention, Mr Jefferson submitted that the Judge was overborne by the fact that the appellant had not been fully accepting of responsibility and had sought to put blame on the complainant. He submitted that greater weight ought to have been given to recognition of home detention as a less restrictive option where High Court and Court of Appeal decisions have recognised that the principles of deterrence and denunciation can be fulfilled by such a sentence.
[13] For the respondent, Mr Bridgman submitted that the sentencing Judge had assessed all relevant considerations. He submitted that the appellant’s numerous medical conditions and his relative frailty could nonetheless be managed in prison and
3 He instanced the decision of Gendall J in Clifton v Police HC Palmerston North CRI-2007-454-56, 4 February 2008.
that some discount had been given for them. Whilst the appellant was entitled to claim he had no previous convictions, the weight to be given to that should be tempered by the fact that the offending here spanned a number of years, possibly up to a decade.
[14] Mr Bridgman submitted that no error could be shown and that the outcome was well within the options properly available to the Judge.
Analysis
[15] I accept that more allowance might have been made for the difficulties the appellant will encounter in serving a prison sentence. Sending a 71 year old of limited mobility dependent on a walker, and with other aspects of poor health, to prison for first offending should require meaningful justification.
[16] Although the appellant volunteered a limited aspect of the offending, he continues to attempt to minimise the real impact. Most egregiously, he attempted to shift blame onto the complainant who was a young boy and adolescent throughout the period of much of the offending. Is that sufficient to decline what would otherwise be an appropriate substitution of a home detention sentence for one of imprisonment?
[17] I respectfully differ from the sentencing Judge in the effect of denunciation and deterrence that can be signalled by a sentence of home detention. This has been recognised by the Court of Appeal,4 and the importance of adequately signalling denunciation and deterrence does not lead to substituting home detention for what would otherwise be a prison sentence “only in exceptional circumstances”. The Court of Appeal has found it is not necessary to adopt that approach in relation to sexual offending against children.5
[18] As to the difficulties for a man of the appellant’s age and health problems enduring a prison sentence, I do accept that his conditions may well be capable of being managed in prison. However, that does not entirely alleviate the additional difficulties he will encounter, relative to the ability to manage his conditions in his own home environment.
4 For example, R v Iosefa [2008] NZCA 453 at [41]; Fairbrother v R [2013] NZCA 340 at [29].
5 Kennedy v R [2011] NZCA 569 at [8].
[19] For these reasons, I consider that this is a case for substituting home detention. I accordingly allow the appeal and substitute the original sentence of 19 months’ imprisonment with one of nine months’ home detention. I specify the conditions that are to apply at the end of the judgment.
Entry of Child Sex Offender Register
[20] The appellant’s name was required to be placed on the register as a result of being sentenced to imprisonment.6 Once the prison sentence is substituted with one for home detention, under s 9 of the relevant Act the Court has a discretion as to whether the offender is to be placed on the register. In the appellant’s case, it is an issue of whether he remains on the register and for that to occur I have to be satisfied that he poses a risk to the lives or sexual safety of one or more children or of children generally.7
[21]The considerations are set out in s 9(3) as follows:
9 Court may make registration order
…
(3)For the purpose of assessing the risk posed by the person, the court must consider the following matters:
(a)the seriousness of the qualifying offence:
(b)the period of time that has elapsed since the offence was committed:
(c)the age of the person:
(d)the age of the person at the time of the offence:
(e)the age of any victim of the offence at the time of the offence:
(f)the difference in age between the victim and the person at the time of the offence:
(g)any written assessment of the risk posed by the person:
(h)any submission or evidence from any victim of the offence:
6 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 7(1)(a).
7 Section 9(2).
(i)any other submission or evidence relating to the risk posed by the person:
(j)any other matter that the court considers relevant.
[22] If the appeal succeeded to this point, Mr Jefferson submitted that there were no grounds for exercising the discretion to require the appellant to remain on the register. He submitted that the appellant did not pose a risk given his frail state of health, the admission of his previous offending, and an on-going condition of his sentence that he not associate with young people under the age of 16.
[23] I note that the writer of the pre-sentence report took the view that whilst his likelihood of re-offending was treated as low, the appellant’s conduct since the offending came to light meant he is ranked as being at a moderate to high risk of harming others.
[24] On all the information available, and despite his frail physical condition and the requirement that he not associate with young people limiting his opportunities for offending, the appellant’s attitude to his offending does give rise to a sufficient risk for his registration to remain. For the avoidance of doubt, I deal with this by ordering, under s 9 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 that his name be placed on the register. In practice, I apprehend this means only that it will not be removed.8
Summary
[25] I am mindful of the Court of Appeal’s caution in Palmer v R that in appeals challenging sentencing decisions not to substitute home detention for a short sentence of imprisonment, a significant margin of discretion ought to be afforded to the sentencing Judge.9 Here, the Judge implicitly recognised it was a borderline case.10 But, with respect to the Judge, on a weighing of the competing relevant considerations, I find it a clear case in which home detention is the least restrictive sentence that will
8 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 7(5).
9 Palmer v R [2016] NZCA 541 at [19].
10 The Judge acknowledged having vacillated over the question – see [23] of the sentencing notes quoted at [8] above.
sufficiently mark the deterrence and denunciation required by the seriousness of the offending.
[26] I have accordingly allowed the appeal. The sentence of 19 months’ imprisonment is to be substituted with one of nine months’ home detention. The special conditions that are to apply to the sentence are those recommended in the pre- sentence report, namely that the appellant is:
(a)to attend and complete an appropriate treatment/counselling/ programme to the satisfaction of a Probation officer; the specific details of which shall be determined by a Probation officer;
(b)not to associate with or contact the complainant without the prior written approval of a Probation officer;
(c)not to associate or otherwise have contact with any person under 16 years of age except in the presence and under the supervision of an “approved informed adult”, which means a person who has been given prior approval in writing by a Probation officer as being suitable for the purpose of this condition.
[27] The appellant is to be released from prison when arrangements can be made for him to travel directly to the address at which the home detention sentence is to be served, at a time convenient to those who will supervise the home detention sentence to meet him there and induct him to it.
[28] The appellant is to remain on the Child Sex Offender Register. As a matter of form, I direct that his name is to be entered on the register pursuant to s 9 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016.
Dobson J
Solicitors/Counsel:
J S Jefferson, Napier for appellant
Crown Solicitor, Napier for respondent