C v Police - [2020] NZHC 3200

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,

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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…

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 C v Police

Details

AGLC: C v Police [2020] NZHC 3200
Case: [2020] NZHC 3200
Decision Date: 7 December 2020

CaseChat Overview and Summary

The appellant, C, was convicted in the Napier District Court for two charges of indecent acts on a young person, one of whom was under the age of 12 at the time of the offences. The appellant was sentenced to 19 months’ imprisonment by Judge Matenga, who declined to commute the sentence to home detention. The appeal was brought on the ground that the Judge was wrong not to transform the short sentence of imprisonment into one of home detention, as recommended in the pre-sentence report. The offending involved the appellant exploiting opportunities when he could get the complainant on his own to carry out sexual offending against him. The appellant was a 71-year-old first offender, in poor health, with limited mobility, who partially volunteered the offending and was claimed by counsel to be remorseful. The District Court Judge ranked the relative seriousness of the offending as warranting a starting point of 30 months’ imprisonment and allowed a 35 per cent discount, reducing the starting point to 19 months’ imprisonment. The Judge then considered the prospect of substituting a sentence of home detention, deciding against it. The appellant submitted that more allowance might have been made for the difficulties he would encounter in serving a prison sentence and that greater weight ought to have been given to recognition of home detention as a less restrictive option. The Court accepted that more allowance might have been made for the difficulties the appellant would encounter in serving a prison sentence and that a sentence of home detention would be appropriate in this case. The Court substituted the original sentence of 19 months’ imprisonment with one of nine months’ home detention, specifying the conditions that are to apply. The Court also ordered that the appellant’s name be placed on the Child Sex Offender Register. The appeal was allowed, and the sentence of 19 months’ imprisonment was substituted with one of nine months’ home detention.

Orders