Dean v The Queen

[2021] NZHC 2334

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2021-419-51

[2021] NZHC 2334

BETWEEN

LANCE NIGEL DEAN

Appellant

AND

THE CROWN

Respondent

Hearing:	3 September 2021 (Via VMR and telephone)
Appearances:	T Sutcliffe for the Appellant B Harris for the Respondent
Judgment:	7 September 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 7 September 2021 at 4:00pm

Registrar/Deputy Registrar

DEAN v THE CROWN [2021] NZHC 2334 [7 September 2021]

[1]    Mr Dean pleaded guilty to two representative charges of indecent communication with a young person under 161 and a charge of doing an indecent act on a young person under 16.2 Judge R L B Spear sentenced him, on 1 July 2021 in the District Court at Hamilton, to 11 months’ imprisonment with release conditions for six months following expiry of the sentence.

[2]    Mr Dean appeals against sentence. He says the starting point adopted by the Judge was too high and that in any event he should have been sentenced to home detention rather than imprisonment. If he is sentenced to home detention he says he should not be placed on the Child Sex Offender Register.

Background

[3]    At the time of the offending, Mr Dean was 41 years old. The complainant was 15 years old.

[4]    From the start of October through to early November 2020, Mr Dean sent the complainant messages, initially through Facebook Messenger and then by text message. These texts were initially confined to general conversation but became sexual in nature. Mr Dean told the complainant she was sexy and made him happy. On one occasion, when Mr Dean saw the complainant with a friend, he messaged her saying her “ass looks so hot right now” and that he was “playing with his cock”. Mr Dean sent further messages telling the complainant he wanted to grab her “ass or tit” next time he saw her, to which she responded “okay baby”. Mr Dean messaged the complainant that “pussy might be too much for you at present … just about to have a wank”. Mr Dean’s messages gave rise to the first representative charge of indecent communication with a young person.

[5]    The complainant sent Mr Dean photos of her breasts and vagina and videos of her performing sexual acts on herself. Mr Dean sent the complainant photos of his penis and videos of him performing sexual acts on himself. Mr Dean’s communications were the basis of the second representative charge.

1      Crimes Act 1961, s 124A. Maximum penalty: three years’ imprisonment.

2      Crimes Act 1961, s 134(3). Maximum penalty: seven years’ imprisonment.

[6]    Mr Dean sent a message to the complainant asking if he could touch her body over her clothes if they were alone. She replied it was fine as she wanted him to touch her. The complainant then visited Mr Dean’s home. She walked past Mr Dean after swimming in the pool. As she did so, Mr Dean touched her bottom. This was the basis of the charge of doing an indecent act on a young person.

District Court decision

[7]    The Judge characterised the offending as grooming and predatory behaviour. Mr Dean took advantage of a young and vulnerable person who was unable to effectively respond to his advances owing to her age and inexperience. The Judge saw the offending as the implementation of a plan for a relationship between Mr Dean and the complainant.

[8]    The Judge acknowledged the complainant entered into the relationship without much hesitation. But Mr Dean pursued the inappropriate relationship. It ended only through the intervention of a concerned third party. Mr Dean’s offending had left the complainant confused, emotionally distraught, socially embarrassed and likely to have difficulty trusting others for years to come.

[9]    Mr Dean asserted that he was remorseful and had insight into the effect of his offending on the complainant. The Judge said a pre-sentence report did not support Mr Dean’s assertion. The Judge noted that Mr Dean disagreed with the statements in that report. However, the Judge said a text that Mr Dean sent to his wife supported the view expressed in the pre-sentence report. The text read (the Judge adding the emphasis):

I am so so sorry what I have done to u all. What [happened] is all my fault I never asked for any of this to happen it was something that happened naturally between us …

[10]   The Judge said this text was sent after Mr Dean was arrested. The Judge drew particular attention to the words he emphasised, which were disturbing and pointed to Mr Dean’s thinking being “skewed indeed” on relationships.

[11]   In sentencing Mr Dean, the Judge identified several relevant purposes: to hold him accountable for the offending, to acknowledge its seriousness, to deter Mr Dean and others from similar offending and the protection of the community. The Judge noted he was required to take the least restrictive option and that rehabilitation was also relevant.

[12]   The Judge adopted a starting point of 18 months’ imprisonment. This was because of the seriousness of the offending. The indecent communications occurred over a period of some weeks, involved explicit sexual discussions and developed to include the transmission of intimate photos and videos.

[13]    No discount for previous good character was available owing to earlier indecency convictions but an uplift was not imposed for those convictions.

[14]   The Judge accepted that Mr Dean did understand the harm he had done to the complainant and that his offers to participate in restorative justice and of reparation (both of which were rejected by the complainant’s family) were indicative of remorse. For all of that he allowed a discount of ten percent. The Judge also accepted the appropriate discount for Mr Dean’s guilty pleas was 25 per cent.

[15]   The end sentence was therefore 11 months’ imprisonment. The Judge was not prepared to sentence Mr Dean to home detention. That would not have reflected the seriousness of the offending or Mr Dean’s history of indecent offending. Special release conditions were imposed.

Grounds of appeal

[16]Two grounds are advanced on appeal:

(a)The starting point of 18 months’ imprisonment was too high;

(b)The least restrictive sentence was one of home detention.

[17]   If his appeal against a sentence of imprisonment is successful, Mr Dean opposes an order registering him on the Child Sex Offender Register.

Principles governing sentencing appeals

[18]   For a sentencing appeal to succeed the sentence generally must be shown to be manifestly excessive or wrong in principle.3 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive generally depends on the end sentence imposed, rather than the process by which it is reached.4

[19]   This standard of appellate review applies to decisions not to commute imprisonment to home detention in the same way it does to any other sentence. However, the margin of appreciation extended to judges in deciding whether to commute a prison term to a sentence of home detention is usually significant.5

Was the end sentence manifestly excessive?

[20]   I will first consider whether – leaving aside the question of home detention – the end sentence of 11 months’ imprisonment was manifestly excessive.

[21]   In this respect Mr Sutcliffe, for Mr Dean, submits the Judge’s starting point of 18 months was excessive. He notes it was 50 per cent of the maximum sentence. He says it should have been no more than 12 months before mitigating factors. He also criticises the Judge’s reliance on the text that Mr Dean sent to his wife.

[22]   Mr Harris, for the Crown, submits the 18-month starting point was within range. He also says it is the end sentence that is important. He notes the Judge did not apply any uplift for Mr Dean’s previous convictions.

[23]   Counsel agreed that the lead offences were those of indecent communications with a young person under s 124A.6 They also agreed there was little case law dealing with sentencing for such offences. In my view the most useful authorities are two that Mr Sutcliffe referred to: W v Police and Rodgers v R.

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27] and [31]-[35].

4 At [36].

5      Palmer v R [2016] NZCA 541 at [18]-[19].

6      Mr Sutcliffe’s written submissions criticised the Judge for treating these as the lead offences, but Mr Sutcliffe (rightly) did not pursue that at the hearing.

[24]   In W v Police, the defendant was convicted on eight charges (three representative) under s 124A, a charge of an indecent act in a public place and three charges of possession of objectionable publications.7 The s 124A offending was sophisticated and against 41 victims (between three and ten years of age) but each indecent communication was fleeting and the grooming features of Mr Dean’s offending were not present. A starting point of 33 months’ imprisonment for the indecent communication offences was confirmed by this Court on appeal. There were four key aggravating features of the offending: the large number of victims; those victims being among the most vulnerable members of our society; the victims’ parents also having been victimised; and the frequency of the offending.

[25]   In Rodgers v R, the defendant was 37 and the complainant was 14. The complainant was vulnerable owing to her age and inexperience in relationships. Over two weeks they were in regular contact via social media. Their messages were highly sexual in nature, including descriptions of sexual activity. On one occasion, each sent the other a picture of their genitalia. The District Court Judge settled on a starting point of 15 months’ imprisonment with an end sentence of seven months’ home detention.8 On appeal the end sentence was not in issue (the appeal related to registration on the Child Sex Offender Register).9

[26]   In my view these cases confirm that the Judge’s starting point of 18 months was within range, albeit at the top of the range. The offending in W v Police was much more serious but the starting point was much higher. There are significant parallels between Mr Dean’s s 124A offending and that in Rodgers v R. Given the similarities in offending and the additional indecency offending by Mr Dean, I consider the starting point adopted by the Judge is comparable.

[27]   Standing back from those authorities, there are several features of Mr Dean’s offending that in my view justified a starting point of 18 months. Mr Dean’s indecent communications were sustained and for a grooming purpose. He sent indecent images and videos of himself to the complainant. In addition to the indecent communications

7      W v Police [2019] NZHC 2933.

8      R v Rodgers [2018] NZDC 6193.

9      Rodgers v R [2018] NZHC 1800.

he asked to touch her and did so. Moreover, it is the end sentence, not merely the starting point, that is important. The Judge’s starting point may have been at the top of the available range but that was balanced by the Judge not imposing any uplift for Mr Dean’s previous convictions.

[28]   In addition to taking issue with the Judge’s starting point, Mr Sutcliffe says the Judge was wrong in his assessment of the background to the text message sent by Mr Dean to his wife. The Judge said that the text message was sent after Mr Dean had been arrested and was separated from his family. This narrative of events is incorrect, as Mr Dean’s cell phone was seized when he was arrested.

[29]   However, this error has no bearing on the end sentence the Judge reached. The Judge referred to the text in the context of Mr Dean’s assertion he was remorseful and had insight into the effect of his offending. The Judge ultimately accepted Mr Dean did understand the harm he had done to the complainant and that he was remorseful. For all of that he allowed a discount of ten percent.

[30]   I conclude that the end sentence of 11 months’ imprisonment, before considering other sentencing options, was correct.

Should home detention have been ordered?

[31]   Mr Sutcliffe submits home detention was the least restrictive sentence available in this case.

[32]   When considering whether to impose a sentence of imprisonment, the Sentencing Act 2002 provides that the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.10 The court must not impose a sentence of imprisonment unless satisfied that relevant sentencing purposes cannot be achieved by a sentence other than imprisonment.11

10     Sentencing Act 2002, s 16(1).

11     Sentencing Act 2002, s 16(2).

[33]   Home detention has been recognised by the courts as being itself serious punishment. It is regarded as meeting the need for a deterrent sentence in an appropriate case.12 There is no presumption in the Sentencing Act for or against commuting a term of imprisonment to home detention. An exercise of judgment on a case by case basis against the statutory principles and purposes of sentencing is required to decide whether home detention is an adequate response to the seriousness of the offending.13

[34]   The Judge refused home detention owing to the seriousness of the offending and Mr Dean’s earlier offending. He said it was also important for Mr Dean to understand how serious his offending was.

[35]   The decision whether to commute imprisonment to home detention was one that required the Judge to take into account all the relevant purposes and principles set out in the Sentencing Act. In my view, the Judge did correctly consider the gravity of the offending, deterrence and whether imprisonment was the least restrictive outcome. However, he did not take into account whether imprisonment was necessary to protect the community or whether it would appropriately provide for Mr Dean’s rehabilitation and reintegration.

[36]   In determining whether home detention is available, I recognise that the offending is serious, though far from the most serious of its kind, that there was an extended period between this offending and the earlier offending and that Mr Dean has the support of his family. In these circumstances, protection of the community can be assured by a combination of home detention, post-detention restrictions and (as I address below) registration as a child sex offender. This combination of sentence will also provide for his rehabilitation, hold him accountable for what is serious offending, denounce his conduct and deter him and others from similar offending. It is the least restrictive sentencing option.

12     W v Police [2019] NZHC 2933 at [38].

13     Palmer v R [2016] NZCA 541 at [19].

[37]   As to the term of home detention, it is not a matter of simply halving the 11 months’ imprisonment that otherwise would have been imposed.14 My assessment is that a term of six months’ home detention would be appropriate. However, allowance has to be made for the almost three months that Mr Dean has spent either on remand from 11 November to 2 December 2020 or in custody since sentencing. Accordingly, the final sentence will be three months’ home detention.

Should Mr Dean be registered as a child sex offender?

[38]   Because Mr Dean is to be sentenced to home detention, I am required to consider whether I should order his registration on the Child Sex Offender Register. Under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Child Protection Act) the offence of indecent communication with a young person under 16 is a class 1 offence and the offence of doing an indecent act on a young person under 16 is a class 2 offence. Both are therefore qualifying offences in terms of s 4 of the Child Protection Act.

[39]   As Mr Dean will be sentenced to a non-custodial sentence, s 9 provides that the Court may order his registration. Section 9 states, in part:

9        Court may make registration order

(1)If a court imposes on a person a non-custodial sentence in respect of a conviction for a qualifying offence, the court may order that the person must be placed on the register and must comply with the reporting obligations of this Act.

(2)A court may make an order under this section (a registration order) only if the court is satisfied that the person poses a risk to the lives or sexual safety of 1 or more children, or of children generally.

(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:

14     R v Bisschop [2008] NZCA 229.

(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:

(i)any other submission or evidence relating to the risk posed by the person:

(j)any other matter that the court considers relevant.

[40]   This decision has two steps. First, pursuant to s 9(2), I must consider whether Mr Dean poses a risk to the lives or sexual safety of one or more children or of children generally. In assessing that risk, I must consider the matters set out in s 9(3). The Supreme Court has recently described this exercise as one of determining whether the risk is real or genuine.15 Second, there is a discretion to make an order. The discretion is exercised by assessing whether the risk is sufficient to warrant making an order and subjecting the defendant to the requirements of the Act. This involves balancing the protective objectives of an order against the intrusion into the rights of the defendant.16

[41]   As to the first step, I am satisfied that Mr Dean poses a real and genuine risk to the sexual safety of children generally. I have considered both the pre-sentence report (which assesses Mr Deans’ risk of re-offending and harm to others as medium) and a more recent Corrections assessment (which puts Mr Dean’s risk of sexual offending as low). These are slightly conflicting assessments but both recognise a real risk.17 Mr Dean’s current and prior offending support the conclusion he poses a real risk. The current offending was serious and continued over a period of time. It involved a vulnerable young person who was exploited by a much older and more experienced man. His prior convictions were for similar offending.

[42]   As to the second step, I regard the risk that Mr Dean poses as being significant. This is primarily because of the seriousness of the current offending and that he had offended in a similar way in the past. Moreover, if the risk materialises the potential

15     D v Police [2021] NZSC 2 at [104]-[105] and [260].

16     D v Police [2021] NZSC 2 at [108].

17     A low risk is still a real risk: D v Police [2021] NZSC 2 at [128].

for serious harm is significant. The current offending has had a profound effect on the complainant. These considerations outweigh the intrusion that registration will have on Mr Dean’s rights. I conclude it is appropriate, for the continuing protection of the community, that Mr Dean be registered on the Child Sex Offender Register.

Result

[43]   The appeal is allowed. The sentence is quashed and a sentence of three months’ home detention is substituted. That sentence is to be served at the alternative address and on the home detention conditions set out in the pre-sentence report dated 16 June 2021.

[44]   Mr Dean will, for a period of six months after completing the sentence of home detention, be subject to the standard post-detention conditions set out in s 80O of the Sentencing Act and the following special conditions:

(a)If not already completed, to attend an assessment for the SAFE Programme as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.

(b)Not to undertake any employment, voluntary work or training without 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”. An “Approved Informed Adult” means a person who has been given prior approval in writing by a Probation Officer as being suitable for the purpose of this condition.

(d)To reside at an address approved by a Probation Officer and not move to any new residential address without the prior written approval of a Probation Officer.

(e)Attend a psychological assessment with a departmental psychologist as directed by a Probation Officer and complete any treatment and/or counselling as recommended by the assessment to the satisfaction of a Probation Officer.

(f)Not to associate with or contact the complainant without the prior written approval of a Probation Officer.

[45]   There is an order under s 9 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 that Mr Dean be registered on the Child Sex Offender Register and comply with the reporting obligations of that Act.

Campbell J