Dickinson v The Queen
[2018] NZHC 2280
•30 August 2018
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) 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-2018-463-000058
[2018] NZHC 2280
BETWEEN GRAHAM ROBERT DICKINSON
Appellant
AND
THE QUEEN
Respondent
Hearing: 30 August 2018 Appearances:
A Schulze for the Appellant A D Hill for the Respondent
Judgment:
30 August 2018
ORAL JUDGMENT OF WYLIE J
Solicitors/counsel:
Lance Lawson, Rotorua
Crown Solicitors, Rotorua
DICKINSON v R [2018] NZHC 2280 [30 August 2018]
Introduction
[1]The appellant, Mr Dickinson, pleaded guilty to four charges, namely:
– indecent assault on a girl under the age of 12;1
– indecent assault on a young person;2 and
– indecent assault (x 2).3
[2] On 22 June 2018, Mr Dickinson was sentenced by Judge Cooper in the District Court at Rotorua to two years’ imprisonment.4 Special conditions were imposed. The Judge also ordered Mr Dickinson to make a reparation payment on account of emotional harm in the sum of $20,000.5
[3] Mr Dickinson appeals his sentence, arguing that it is manifestly excessive. There is no challenge, however, to the starting point adopted by the Judge, nor to the uplifts or discounts allowed by him. Nor is there any challenge to the special conditions or to the reparation payment. Rather, it is alleged that Judge Cooper erred in declining to impose a sentence of home detention.
[4]The Crown opposes the appeal.
[5] The sole issue is whether a sentence of home detention should have been imposed on Mr Dickinson.
Factual background
[6] The victim in relation to all of the offending is related by marriage to Mr Dickinson.
1 Crimes Act 1961, s 133(1)(b).
2 Section 134(3).
3 Section 135.
4 R v Dickinson [2018] NZDC 12827.
5 At [20].
[7] When the victim was a child, Mr Dickinson would take her swimming. On numerous occasions, he would grab her by the ankles and rub her feet against his erect penis.
[8] When the victim was 12 to 13 years old, Mr Dickinson rubbed his hands up and down her thighs and over her bottom. He also squeezed her bottom. This happened on one occasion only.
[9] In 2017, when the victim was 20 years old, she visited Mr Dickinson in a mobile home where he was then living. He persuaded her to get into his bed. He then put his hands between her legs and tried to force them open. He pushed his hand into her genital area, pushing against her vagina over the top of her clothing. The following morning, Mr Dickinson simulated sexual intercourse from behind the victim. She could feel his erect penis rubbing against her. He was making sexually explicit comments to her at the time.
District Court decision
[10] Judge Cooper set out the factual background to the offending, and he noted the severe effects the offending has had on the victim.6 He noted that there is no tariff case for offending of this kind.7
[11] The Judge noted that Mr Dickinson has no relevant previous convictions, but he did not regard him as being of previous good character.8 He noted that Mr Dickinson is otherwise a contributing member of the community and he recorded that he had taken this factor into account.9 He also referred to Mr Dickinson’s health condition.10 He acknowledged that it is real, but noted that it is not a condition that cannot be managed in the prison environment.11 He also referred to a letter of remorse Mr Dickinson had written.12
6 R v Dickinson, above n 4, at [1]-[8].
7 At [11].
8 At [8].
9 At [8].
10 At [9].
11 At [9].
12 At [10].
[12] The Judge then turned to consider the appropriate starting point. He referred to the victim’s age and the scale of the offending.13 The offending when the victim was aged under 12 years occurred on numerous occasions. The Judge noted that Mr Dickinson had used the victim as a sexual object for his own sexual gratification.14 He referred to the gross breach of trust involved.15 He referred to the victim’s vulnerability, not only because of her age, but also because of the family dynamic.16 He noted that Mr Dickinson was in a position of authority within the household.17 He took as a starting point on the two charges of indecent assault on a girl under 12 years of age, a sentence of two and a half years’ imprisonment.18 He increased this starting point by a further year because of the further offending that occurred later when the victim was 20 years of age.19
[13] The Judge then turned to consider personal mitigating factors. He noted Mr Dickinson’s age and health.20 He referred to s 8(h) of the Sentencing Act 2002. He noted that Mr Dickinson was remorseful and that he had offered to pay reparation.21 He also noted that Mr Dickinson was willing to attend a restorative justice conference, but he did not consider that this factor warranted any reduction in the sentence for reasons which he set out.22 The Judge reduced his starting point by nine months to allow for these various mitigating factors, reducing his sentence to one of two years and nine months’ imprisonment.23 The Judge then allowed a discount of 25 per cent, or a further nine months, to take into account Mr Dickinson’s early guilty pleas, resulting in an end sentence of two years’ imprisonment.24 This meant that the sentence to be imposed was a short-term sentence of imprisonment.
[14] Judge Cooper then turned to consider whether a sentence of home detention would be appropriate. He stated as follows:
13 At [12].
14 At [12].
15 At [12].
16 At [12].
17 At [12].
18 At [13].
19 At [13].
20 At [14].
21 At [14].
22 At [15].
23 At [16].
24 At [17].
[18] Because it is two years imprisonment, I then have to consider whether a home detention sentence would meet the sentencing needs of the case. The principles and purposes of the Sentencing Act are all relevant to that evaluation. Your counsel has submitted that there is no particular utility in sending a person of your age to prison, particularly with your health condition. I have to impose a sentence which deters and denounces what you have done and which holds you accountable, not just to the complainant but to society as a whole, for your offending. I have to have regard to the need for your rehabilitation and to protect the community, and the Sentencing Act says that I have to impose the sentence that is the least restrictive in the circumstances consonant with the interests of justice.
[19] Sexual offending against a young person is always serious offending. If you had come to the Court many years after that offending showing remorse and showing a blameless life, a sentence of home detention may have been possible, but your renewed offending against the complainant in 2017 to my mind is such that home detention would not meet the sentencing needs in this case. It would not be sufficient to hold you accountable for your offending and to provide for deterrence and denunciation. So, in my view, the least restrictive sentence that can be imposed in your case is a sentence of two years imprisonment.
Submissions
[15] Mr Schulze, for Mr Dickinson, submitted that Judge Cooper erred in ruling out home detention as a suitable sentencing option. He argued that the principles of the Sentencing Act required Judge Cooper to impose the least restrictive sentencing option available, and that home detention was that least restrictive option. It was argued that Judge Cooper erred in placing emphasis on the further offending in 2017 when the victim was aged 20, as being a reason for declining to order home detention. It was argued that the 2017 offending had already been taken into account in fixing the starting point. It was also argued that the Judge erred in failing to consider all relevant factors and that there were a number of matters not identified by the Judge – namely that Mr Dickinson poses a low risk of reoffending, his offer to make amends, the remorse he has expressed, his age and his health problems. It was argued that home detention is a deterrent sentence in itself, and that a lengthy sentence of home detention would meet the purposes and principles of the Sentencing Act in this case.
[16] Mr Hill, for the Crown, noted that the decision whether or not to impose a sentence of home detention involves the exercise of a judicial discretion. He accepted that the discretion is not unfettered, and that it has to be exercised having regard to the purposes and principles of sentencing contained in the Sentencing Act, but he argued
that an appellate court should not lightly interfere with such a decision, unless it is satisfied that the sentencing Judge has erred in principle, failed to take into account a relevant matter, took into account an irrelevant matter, or made a decision that is plainly wrong. It was argued that Judge Cooper did not err in principle, consider irrelevant matters, or ignore relevant matters, and that his decision could not be said to be plainly wrong.
Approach to appeal
[17]Mr Dickinson appeals as of right to this Court.25
[18]Section 250(2) of the Criminal Procedure Act 2011 provides:
(2)The first appeal court must allow the appeal if satisfied that—
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
In any other case, the court must dismiss the appeal.26
[19] A sentence may be set aside where it is manifestly excessive.27 Whether a sentence is manifestly excessive depends on the end sentence, not the process by which the sentence was reached. The court will not intervene where the sentence is within range. But, if the court determines the sentence is manifestly excessive, it must form its own view of the appropriate sentence.28
Analysis
[20] It is a principle of sentencing that a sentencing Court must impose the least restrictive outcome that is appropriate in the circumstances.29
25 Criminal Procedure Act 2011, s 244(1).
26 Section 250(3).
27 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].
28 At [30].
29 Sentencing Act 2002, s 8(g).
[21] The Act puts in place a hierarchy of sentences and orders.30 A sentence of imprisonment is the most restrictive sentence available. Home detention is the second most restrictive sentence available.
[22] Imprisonment is “a measure of last resort”,31 and the Court of Appeal has observed that there is a “discernible legislative policy of keeping offenders within the community wherever appropriate”.32
[23] Where a sentence of imprisonment is neither presumptive nor mandatory, and where the term of imprisonment considered appropriate is a short-term period of imprisonment,33 a sentencing Court must decide whether to commute that sentence to one of home detention.34 Section 15A(1) constrains the Court’s discretion. Relevantly, it provides as follows:
15A Sentence of home detention
(1)If a court is lawfully entitled under this or any other enactment to impose a sentence of home detention, it may impose a sentence of home detention only if—
(a)the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and
(b)the court would otherwise sentence the offender to a short- term sentence of imprisonment.
…
[24]Relevantly, s 16 of the Act provides as follows:
16 Sentence of imprisonment
(1)When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability
30 Section 10A.
31 R v Rawiri [2011] NZCA 244 at [18].
32 At [17].
33 A short term of imprisonment is two years or less – see the Sentencing Act, s 4 and Parole Act 2002, s 4(1).
34 Sentencing Act, s 15A.
of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.
(2)The court must not impose a sentence of imprisonment unless it is satisfied that,—
(a)a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and
(b)those purposes cannot be achieved by a sentence other than imprisonment; and
(c)no other sentence would be consistent with the application of the principles in section 8 to the particular case.
…
[25] The Court of Appeal, in Fairbrother v R, considered the exercise of the discretion to impose a sentence of home detention on charges of sexual offending against children.35 The Court said that where imprisonment is neither presumptive or mandatory, s 16(2) prohibits the sentencing Judge from imprisoning unless he or she is satisfied as to three matters set out in that section.36 The Court commented in this regard as follows:
[26] First, the purpose for which imprisonment is to be imposed must be to hold the offender accountable, or to induce in him or her a sense of responsibility, or to serve the interests of any victim, or to denounce the offending, or to deter, or protect the community. Secondly, any such purpose must not be able to be achieved by any lesser sentence. Thirdly, there must be no other sentence that would be consistent with such of the 10 s 8 principles of sentencing as apply.
(Citations omitted)
The Court then went on to observe as follows:
[29] Sentences of imprisonment have been quashed and home detention substituted for two errors of law. One is where the sentencing judge has assumed that the offence category lies beyond a sentence of home detention. The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence.
35 Fairbrother v R [2013] NZCA 340.
36 At [25].
[30] That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[31] Sometimes … that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other”. Even in those cases, however, the choice must be intelligible. The factors that really count must be identified and weighed.
[32] As this case involved sexual abuse of a child the Judge was obliged to consider carefully the appropriateness of a sentence of home detention. Because, as this Court said in Kennedy v R:
“All sentences that are potentially in the range should be considered on their merits, although it will be recognised that the likely sentencing outcome for sexual offending against children is imprisonment.”
(Citations omitted)
[26] In my judgment, Judge Cooper did not fall into the first of the two errors identified in the passage set out above. He did not assume that the offence categories with which he was dealing lay beyond the sentence of home detention. Nor did he fall into the second error. He did not give the purpose of deterrence complete priority without regard to any of the countervailing purposes of sentencing. Rather, he had regard not only to deterrence, but also to denunciation, and the need to hold Mr Dickinson accountable, both to the victim and to society as a whole. He had regard to Mr Dickinson’s need for rehabilitation, to the need to protect the community and to the Sentencing Act’s direction that he had to impose the sentence that was the least restrictive in the circumstances of this case.
[27] The Judge did place emphasis on the further offending against the victim in 2017. It is clear that this factor countered strongly in the Judge’s mind against imposing a sentence of home detention. The Judge considered that given that additional offending, a sentence of home detention would not be sufficient to hold Mr Dickinson accountable for his offending, and to provide for deterrence and denunciation.
[28] The Judge did not, however, in my judgment, ignore other relevant factors. He referred expressly to Mr Dickinson’s age and health, to his willingness to engage in the restorative justice process (although not a factor to which the Judge gave weight for reasons set out by him), to Mr Dickinson’s remorse, to his character and to his offer to pay financial reparation. He also referred to Mr Dickinson’s early guilty pleas. Although these matters were not expressly referred to when the Judge was considering whether or not to impose home detention, it is clear that the Judge was aware of them.
[29] The Judge referred to the need to denounce Mr Dickinson’s actions, and to the need to hold him accountable to the victim. In my view, he did not err in this regard. The victim impact statement makes harrowing reading. The offending has clearly ruined her family relationships. She has tried to take her own life on more than one occasion. Her confidence and trust in others has been severely compromised. The further offending in 2017 retraumatized her. The victim’s interests were important in this case, and so was denunciation and the need to hold Mr Dickinson accountable.
[30] As I have noted, the Judge referred to all relevant principles and purposes set out in the Sentencing Act. In my judgment, he made an intelligible decision, identifying relevant factors and the weight that he gave to each.
[31] This matter is finely balanced. I accept the submission made by Mr Schulze that home detention is a significant sentence in its own right, and that it can serve the purposes of denunciation and deterrence.37 I also accept that it is not necessary to adopt an “only in exceptional circumstances” approach to home detention in relation to sexual offending against children.38 Nevertheless, it must be acknowledged that sexual offending by an adult against children is always serious offending. While not the inevitable outcome, the likely sentencing outcome for such offending is a term of imprisonment.39
[32] In my judgment, the circumstances of this case, in particular the further offending in 2017, the clear need for denunciation, the need to hold Mr Dickinson
37 Fairbrother v R, above n 35, at [28] and [30].
38 At [8].
39 Kennedy v R [2011] NZCA 569 at [8].
accountable to the victim, and the need to provide for her interests, make a sentence of imprisonment the only appropriate outcome consistent with the relevant principles of sentencing. I am not persuaded that there is an error in the sentence imposed by Judge Cooper, or that a different sentence should be imposed.
[33]The appeal is dismissed.
Wylie J
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