Escott v The Queen

[2017] NZHC 2853

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI-2017-485-46 [2017] NZHC 2853

BETWEEN

PAUL THOMAS ESCOTT

Appellant

AND

THE QUEEN Respondent

Hearing:	14 November 2017
Counsel:	L A Scott and B A Crowley for Appellant I R Murray for Crown
Judgment:	21 November 2017

JUDGMENT OF THOMAS J

Introduction

[1]      Paul Escott was sentenced in the Wellington District Court to 11 months’ home detention following guilty pleas for 18 historical indecent assault charges on six boys.1

On 16 August 2017, the Judge ruled that Mr Escott ought to be registered on the Child Sex Offender Register (the Register) pursuant to s 9 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act).2     Mr Escott now

appeals that ruling on the basis the Judge erred in assessing the seriousness of the risk.

1      R v Escott [2017] NZDC 18347.

2      R v Escott [2017] NZDC 18410.

PAUL THOMAS ESCOTT v THE QUEEN [2017] NZHC 2853 [21 November 2017]

Factual background

[2]      Mr Escott is 75 years old. He has had considerable involvement in table tennis throughout his adult life. The offending occurred between 1979 and 1995, when Mr Escott was a table tennis coach.  He used that position to orchestrate moments where he could take advantage of boys involved in table tennis.

[3]      Mr Escott’s convictions are as follows:3

(a)      Three for indecency on a boy aged under 16 (one representative) and three for indecency on a boy over 16 (one representative) against complainant one.   In 1979 when he was aged 36 or 37, Mr Escott touched the 15 year old boy’s legs under the guise of helping him stretch, and lay on the floor so as to look up the boy’s shorts towards his genitals.  While travelling for tournaments that same year, the boy and Mr Escott were billeted to share a room.  Mr Escott ripped off the boy’s covers, looked at his open fly and wrapped his arms around the boy, shaking.  Mr Escott pretended to be wrestling him when the boy struggled free.  Sometime between 1979 and 1980, Mr Escott and the boy went swimming while on a tournament.  Mr Escott caught the boy as he came to the end of a water slide and pretended to wrestle him.

Mr Escott’s hands were focused on the complainant’s abdomen, near his pubic region.   After a while, the complainant’s discomfort with

Mr Escott’s  behaviour  stopped  him  using  the  slide.     A  similar swimming incident happened during a summer tournament in 1980–

1981 and, on the way home, Mr Escott stared at the complainant’s crotch and suggested he take off his track pants.  In December during that same tournament, Mr Escott supplied beer to the complainant and other boys on tour.  After going to bed, the complainant vomited and

Mr Escott demanded he get out of bed and shower.  The complainant

3      Because of the historic nature of the offending, the Crimes Act 1961 provisions vary.  Most are under s 140A(1)(a) and attract a maximum penalty of seven years.   Three against the first complainant are under s 141(1)(a) and attract a maximum penalty of five years but, because they are for indecency on a boy over 16, they are not qualifying offences under the Act and are to be disregarded in this assessment.

refused and Mr Escott forcibly removed his clothing, put him in the shower and used soap to lather up the complainant’s body, focusing on the boy’s genitals.  Between 1980 and 1981, Mr Escott continued the practice of looking up the boy’s shorts while he was stretching.

(b)One for indecency on a boy aged under 16 and one for indecency on a boy between 12 and 16 against complainant two.  In 1985, Mr Escott touched the 12 year old complainant’s bottom while he was stretching. During a 1987 tournament, the team went swimming and Mr Escott hugged the boy in the water, ostensibly to protect him but the complainant felt uncomfortable.

(c)     Five for indecency on a boy aged between 12 and 16 (three representative) against complainant three. Between 1986 and 1989, Mr Escott observed the complainant change into sports gear, touched his legs during stretching – spreading his legs apart and looking towards his genitals. Over the same period, during a stretch which required the complainant to lean back, Mr Escott would pull the complainant’s waistband, exposing his genitals.  One on occasion, Mr Escott placed his hand on the table tennis table where the complainant leaned against the table during play. In doing so, Mr Escott touched the complainant’s genitals through his shorts. Again between 1986 and 1989, Mr Escott would supply beer following tournaments and encourage the complainant to participate in drinking games.  Mr Escott would then pull the bed covers off the complainant, lift the complainant’s waistband and observe his genitals.   Similar incidents took place on specific tournaments between 1986 and 1989.

(d)Two  for  indecency  on  a  boy  aged  between  12  and  16  against complainant four.  In 1987, the 12 year old complainant grazed his hip while swimming on tour. Mr Escott observed him change, requested to check his graze and stared at the boy’s genitals.  During the same tour, again while swimming, Mr Escott grabbed the boy’s waistband and

stared at his genitals for some seconds until the boy said he wished to get out of the pool.

(e)      One  for  indecency  on  a  boy  aged  between  12  and  16  against complainant five.   In 1992 or 1993 the complainant awoke to find

Mr Escott had pulled his top up and his pants down to expose his chest and midriff and was touching his stomach, gripping firmly and breathing heavily while looking into the complainant’s eyes.

(f)      Two  for  indecency  on  a  boy  aged  between  12  and  16  against complainant six.   In 1994, Mr Escott suggested the 12 year old complainant have a bath. Mr Escott came into the bathroom and lapped water onto the complainant and rubbed his body.  He attempted to dry the complainant but the complainant refused.   The next year, while swimming on tour, Mr Escott placed his hand on the complainant’s inner thigh and squeezed it.

[4]      When interviewed by police, Mr Escott admitted much of the behaviour but denied some of the more serious incidents.  He said he thought his behaviour was inappropriate rather than indecent.

[5]      A restorative justice meeting between Mr Escott, complainant two and complainant two’s father took place in July 2017.  Mr Escott accepted responsibility, expressing deep sorrow for what he had done and the ongoing damage it had caused to the complainant and to the complainant’s relationship with his father.  He claimed he had not offended since 1995, when he realised what he was doing was wrong and withdrew from being in situations where he would be alone with boys.  Although

Mr Escott continued coaching, he says he did not coach individuals in order to avoid further offending. The complainant and his father considered the meeting a beneficial part of the mending process.

[6]      Four complainants have supplied victim impact statements.  Although some were aware early on of how wrong Mr Escott’s actions were and others took some time to realise the gravity of the offending against them, they each reveal eloquent and

nuanced understandings of the offending and its ramifications on their lives.  There are a range of reactions, from empathy through to continued hurt and anger.

[7]      Mr Escott has no other convictions.

Pre-sentence report

[8]      The pre-sentence report recommended home detention.  Noting the number of complainants and the period of time of the offending, the writer assessed Mr Escott as a medium risk of reoffending and a medium risk of harm to others.  The writer noted the risk could be reduced if Mr Escott attended a Well Stop programme.

[9]      Mr Escott stated he had difficulty coming to terms with his sexuality but has now lost interest in sex and therefore does not have any deviant sexual thoughts.  He associates that with his feelings of guilt.  His health is not good, having suffered a brain haemorrhage in 2005, two hip replacements and a shoulder replacement.  He takes medication for a variety of medical problems, including arthritis, asthma and blood pressure.

[10]     Mr Escott had attended an information session for Well Stop and expressed interest in undertaking restorative justice processes.  I note, however, that Mr Escott diminished the seriousness of his offending, considering the complainants exaggerated the offending to help their cause.

District Court decision

[11]     The Judge issued a ruling on 16 August, in which he referred to the test in Johnston v Police, applied the s 9(3) factors to an assessment of risk, and then exercised the residual discretion in light of additional factors such as additional stigma.4      The  Judge  considered,  notwithstanding  the  time  since  the  offending,

Mr Escott ought to be placed on the Register because of the extent of the offending,

the number and vulnerability of the victims, and the age difference.

4      Johnston v Police [2017] NZHC 1718.

Submissions

[12]     Ms Scott for Mr Escott submits the Judge erred in the assessment of risk, placing too much weight on factors pointing towards registration, such as level of offending and the number and age of the victims, and not enough on factors which contraindicated registration, such as Mr Escott’s age and time since offending.   In particular, the Judge did not consider the restorative justice report and did not consider the level of restrictions imposed by registration.

[13]     Ms Scott submits the time since offending ought to carry more weight.  She suggests this is particularly so given the period of time on the Register is finite in this context, which indicates Parliament expects risk to reduce over that time.  She also submits age is not a neutral factor, as the Judge treated it. Parliament included age for a reason, indicating that it recognised likelihood of reoffending decreases with age. Given Mr Escott’s claimed period of non-offending, and his age and ill-health, these factors  ought  to  have  weighed  the  balance  against  registration,  in  Ms Scott’s submission.

[14]     Ms Scott suggests the Judge conflated the issues of the age difference and the victims’ ages.   Both are relevant and both ought to be considered separately.   She makes the point that Mr Escott has described being attracted to teenaged boys as they get older. This is obviously refuted by his offending against boys as young as 12.

[15]     In  Ms  Scott’s  submission,  the  Judge  overstated  the  seriousness  of  the offending.   She accepts there were six complainants but, in her submission, the offending was at the lower end of the scale of indecent assault. She says the offending ceased as a result of Mr Escott’s own decision, referring to comments in the restorative justice report where he says he realised what he was doing was inappropriate.  Ms Scott points out that extensive inquiries were undertaken by the police and, in her submission, the Court can be reasonably satisfied there was no other offending and therefore that Mr Escott has not offended for some 23 years.

[16]     Ms Scott points to factors in Mr Escott’s life which indicate his risk is low. He is elderly and infirm, is no longer involved in table tennis which provided him with access to children, and has no sexual urges. She notes the risk assessment made in the

pre-sentence report is based on static factors such as the number of offences but does not adequately assess that in light of the time since the offending or the personal circumstances of and level of insight shown by the offender.

[17]     Finally, Ms Scott suggests the Judge failed to consider the onerous nature of the restrictions and obligations registration brings, and whether that was proportionate to the risk.

[18]     Mr Murray, for the Crown, submits the correct test is not that in Johnston or Fowler,5  but that in Goose.6    He suggests the former set the threshold too high and arguably elevated one mandatory factor – seriousness of the offence – above all others, and moves from assessing risk to assessing seriousness. Consequently, the Court need only consider whether the risk to the sexual safety of children is real and genuine, rather than whether the level of risk is that posed by a serious child sex offender.

[19]     In any event, Mr Murray submits there was no error in the Judge’s reasoning in this case.  He makes the following points:

(a)       the offending was moderately serious;

(b)the period of time which has elapsed since the offending does not adequately remove the risk given the period over which the offending took place and the fact the offending happened in tranches;

(c)      the appellant’s age at the time of offending, between 37 and 53, does not count against registration and the fact the appellant is 75 does not inevitably reduce the risk.   In support of the proposition risk does not reduce with age, Mr Murray points to cases of other elderly offenders, where  risk  was  assessed  as  high  enough  to  warrant  sentences  of

preventive detention;7

5      Johnston, above n 4; and Fowler v R [2017] NZHC 1892.

6      Goose v Police [2017] NZHC 2453.

7      R v Steedman CA307/01, 27 February 2002; and Tranter v R [2017] NZCA 45.

(d)the ages of the victims, and the disparity between them and Mr Escott, points towards registration;

(e)      the pre-sentence report does not address the specific risk involved, the Judge is required to assess the risk independently and did not place much weight on the report; and

(f)      the Judge inferred the victims would support registration but placed no particular weight on that.

[20]      In Mr Murray’s submission, these factors overwhelm the passage of time and indicate the statutory risk was made out.   He submits that, once the threshold test is satisfied, something “extraordinary” is required to avoid registration.   That is consistent with Bell, where the Court of Appeal considered the legislation’s purpose to be protective, despite its punitive effect.8

[21]     Mr Murray submits the Judge weighed the relevant matters before determining

Mr Escott ought to be registered.

Law

[22]     The Act provides that registration on the Register is a sentence for the purposes of the Criminal Procedure Act 2011.9   It is therefore amenable to an appeal under pt 6 of that Act.

[23]     In sentence appeals, the appellate court must first find an intrinsic error or one resulting from additional material before assessing whether a different sentence should be imposed.10   The error must be material and must point to grounds for imposing a different sentence.  Those grounds include that the sentence was inappropriate in the

particular circumstances and that the sentence was manifestly excessive.

8      Bell v R [2017] NZCA 9 at [26].

9      Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 9(4).

10     Tutakangahau v R [2014] NZVA 279 at [30] citing R v Shipton [2007] 2 NZLR 218 (CA) at [138].

The Act

[24]     The purpose of the Act is set out in s 3, which provides:

3        Purpose

(1)       The purpose of this Act is to establish a Child Sex Offender Register that will reduce sexual reoffending against child victims, and the risk posed by serious child sex offenders, by—

(a)       providing government agencies with the information needed to monitor child sex offenders in the community, including after the completion of the sentence; and

(b)       providing up-to-date information that assists the Police to more rapidly resolve cases of child sexual offending.

[25]     The Act sets out certain “qualifying offences” for which an offender may be placed on the Register.  Qualifying offences are categorised into classes one, two and three according to ascending seriousness.11   Registration is automatic if the offender is sentenced to imprisonment.  Reporting obligations for class one offences last for eight years.  For class two, the period is 15 years.  For class three, the period is the remainder of the offender’s life,12 although an offender may apply to the District Court for a suspension of those obligations after 15 years.13   Following the imposition of a non-custodial sentence, the sentencing judge may make an order to place the offender on the Register.14   The reporting period for such an offender in respect of any class is eight years.15

[26]     A registered offender must report all “relevant personal information” on an annual basis,16   report any changes to that information within 72 hours17  and report any change of address or travel plans at least 48 hours prior.18   The list of relevant personal information required is long and includes information about the offender’s

work, sensitive personal  information,  details  of telecommunications  and  internet

11     Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 4 definition of “qualifying offence”, and sch 2.

12     Section 35(1).

13     Section 38.

14     Section 9.

15     Section 35(1).

16     Section 19.

17     Section 20(1)(b).

18     Sections 20(1)(a) and 21.

providers, and the offender’s social media details.19  Unless suppressed, the identity of an offender subject to registration will be publicly available.

[27]     It is an offence to breach reporting obligations.  Penalties for failing to report include imprisonment for up to a year and/or a fine of $2,000.20  Penalties for providing false or misleading information include two years’ imprisonment and/or a $4,000 fine.21

[28]     The Register is accessible to the Department of Corrections, police, and a number of specified government agencies.22     Police may disclose or authorise disclosure of the personal information on the Register to affected persons (parent, guardian, caregiver or teacher) where there are reasonable grounds to believe there is a threat to a child’s safety.23

Section 9 registration orders

[29]     Under s 8, an offender who commits a qualifying offence and is sentenced to imprisonment must be placed on the Register.  Section 9 applies where an offender is convicted of a qualifying offence but is sentenced to a non-custodial sentence. Section

9(1) affords a sentencing judge the discretion to make an order to place such an offender on the Register.     That discretion is not without limitation.   Section 9 relevantly provides:

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.

19     Section 16.

20     Section 39.

21     Section 40.

22     Sections 11(3), 41 and 43.

23     Section 45.

(3)      For the purpose of assessing the risk posed by the person, the court must consider the following matters:

(a)

(b)

the seriousness of the qualifying offence:

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:

(i)

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

(j)

any other matter that the court considers relevant.

…

[30]     Subsection  (3)  was  added  following the  Select  Committee Report  which recommended the provision to give extra guidance to the courts when assessing the risk posed by the offender.

[31]     There has been a difference of approach in the High Court interpreting this provision. With respect to the threshold of risk, Dobson J in Johnston v Police noted:24

[30]      The approach I adopt is that the requirement in s 9(2) that the person is one who poses a risk to the lives or sexual safety of a child or children may reflect a standalone assessment of the s 9(3) considerations.  A consequence would be that anyone found to pose such a risk will, as a matter of definition, be a serious child sex offender in terms of the s 3 purpose.

[31]      This approach means that the level of risk identified for the purposes of s 9(2) must be assessed via s 9(3), but that risk must nonetheless be consistent with that created by a person whose offending is that of a serious child sex offender.  If that minimum ranking of the nature of the risk is not applied, then the regime would apply beyond the scope Parliament intended, as reflected in its statutory purpose.

24     Johnson, above n 4.

[32]     In Fowler v Police, I agreed with Dobson J and said:25

[34]      The risk must be at a level which warrants the imposition of reporting and other relatively draconian obligations in order to protect the safety of children. The need for the Court to be satisfied the risk posed by the offender is that of a serious child sex offender is emphasised by the purpose of the Act and the language of s 9(2) requiring the Court to be satisfied of the risk before it has jurisdiction to make the order.

[35]      The second step is for the Court to exercise its residual discretion – it may make a registration order, but is not obliged to do so.  Mr Murray noted the  Court  of Appeal  observation,  in  the  context  of  a  discharge  without conviction, that a favourable exercise of the residual discretion is likely to follow when the relevant threshold is met.   That may well be the case in the context of a decision not to impose a criminal sanction where the precursor threshold is set very high. A similar approach is not necessarily applicable to a decision which would see the imposition of punitive obligations of long duration.

[36]      This stage of the test includes an assessment of proportionality and a consideration of whether the risk identified in the first stage of the test would be mitigated by the offender being on the Register.  Relevant considerations include balancing the risk to children, adverse impacts of registration, whether registration is proportionate to the risk, and preventing stigmatisation of low- risk offenders.

[37]     Other relevant factors can be drawn from the New Zealand Bill of Rights Act  1990.   That  the Act  imposes  restrictions  on  the  freedom of movement and freedom of expression was acknowledged by the Attorney- General in his s 7 report on the Bill as introduced.  Specific aspects of the Bill also raised concerns regarding the right to be free from disproportionately severe treatment or punishment.  The Attorney-General did not consider what became s 9 of the Act to be inconsistent with those rights.  Nevertheless, they are relevant to the discretion to ensure its exercise infringes on rights only to an extent justifiable in a free and democratic society.   Again, I adopt the observations  of  Dobson  J  in  Johnston  when  he  said  Bill  of  Rights Act considerations provide an overarching constraint on the exercise of the discretion.

[38]     The discretion involves a balancing exercise between, on the one hand, the scale of the risk and the ability of registration to ameliorate that risk and, on the other, the extent of punishment such an order would represent in terms of additional stigma and intrusion on an offender’s rights.

[33]     France J in Goose considered those two cases raised the threshold too high and assessed the matter in these terms:26

[27]     The idea of a threshold level of risk is not inconsistent with the statutory purposes.  The mandatory considerations in s 9(3) are targeted at identifying the risk, and presumably premised on the proposition that not any

25     Fowler, above n 5.

26     Goose, above n 6.

risk, however negligible, will suffice.   However, once the heightened threshold of risk is found to be present, I query the extent to which the discretionary step requires the sort of detailed analysis proposed in Fowler.

[28]     The concept of “serious child sex offender” appears only in the purpose provision and while that obviously informs interpretation, it is not definitional. Section 9 on its face does not contain a heightened test and it can at least be posited that one who has committed a qualifying offence, and who is assessed as posing an ongoing risk to the sexual safety of children can fairly be described as a serious child sex offender.

[29]      In my view, when dealing with offenders sentenced to home detention and concerning whom the relevant risk has been identified as being present, the role of the discretion will be even more circumscribed.  That is because there are many aspects of this type of offender that so closely parallel the offender concerning whom registration is mandatory – that is, every eligible offender who is sentenced to actual imprisonment for any length of term.  A characteristic of the sentence of home detention is that the Court has already determined the offending, but for home detention being available, merits a term of imprisonment.  Section 15A(1)(b) of the Sentencing Act 2002 makes this plain by providing home detention may be imposed:

only if … the court would otherwise sentence the offender to a short term sentence of imprisonment.

[30]      When an offender subject to a sentence of home detention is assessed

as presenting the necessary degree of ongoing risk to child safety, and bearing in mind in accordance with Johnston that the assessed risk is the type of risk

posed by a serious child sex offender, I suggest it will not be often that the discretion points away from registration.  Registration would be consistent

with a statutory scheme that makes registration mandatory for every eligible offender subject to the same short term sentence that underlies all sentences of home detention. And it can be noted that often the difference between the

two situations (home detention or imprisonment) is often something not directly relevant to the registration issue, such as the availability of a suitable

address.

[34]     There is no dispute that the effect of an order is punitive but the purpose is nevertheless protective.  I do not consider this undermines the need to reflect on the level of risk in light of the purpose of the Act and to ask whether that level of risk warrants registration.  That process is protective, placing only those who pose the relevant risk to the lives or sexual safety of children on the Register.

[35]     The Johnston and Fowler cases were concerned with the seriousness of the risk

– that is, the risk must be that posed by a serious child sex offender.

[36]     The different approach in the High Court decisions comes down to the degree to which one considers the purpose section of the Act should provide guidance as to

what level of risk is required.  Simon France J in Goose considered s 9(3) is plain on its face and, if a person has committed a qualifying offence and demonstrates an ongoing risk to the sexual safety of children, that would satisfy the risk threshold assessment. Furthermore he said, in the context of home detention, the discretion will rarely be exercised against registration. He expressed the view that a rarely exercised discretion not to register is in keeping with the scheme of the Sentencing Act 2002, where home detention is only available as an alternative to imprisonment.

[37]     Whether a person is sentenced to home detention or imprisonment involves factors unrelated to registration concerns, such as the suitability or availability of a home detention address.  However, the critical issue in respect of registration under the Act is the level of risk posed by an offender. It would be expected that a person on home detention for this type of offending would be required to undergo counselling and treatment to address the causes for that offending. His or her remorse and attitude towards rehabilitation would likely have been a factor in deciding whether home detention was an appropriate sentence.  Those considerations would also be relevant to the assessment under s 9(3).

[38]     The point I endeavoured to make in Fowler is that any risk assessment tool will conclude the person is a risk and that is because he or she has already committed a sexual offence against a child.  By incorporating the mandatory considerations in s

9(3), Parliament has recognised that the fact of having committed a sexual offence against a child is not the only factor to be taken into account in assessing the risk the person poses in the future.  The analysis is carried out in order to assess the level of risk an offender poses to the sexual safety of children.

[39]     Parliament has given the judiciary the role of ensuring the limitations on rights contained in the Act are justified in each case where the discretion applies.   An offender should not be denied the discretion on the basis a home detention sentence is analogous to a sentence of imprisonment if the risk he or she poses is not that of a serious child sex offender.

The present proceedings

[40]     The two steps of the decision to place a person on the Register attract different appeal approaches.  As the first stage is to evaluate risk, it attracts the Austin approach.27   The second stage involves the exercise of a discretion with more limited scope for intervention on appeal.

[41]     The Judge in this case weighed the mandatory factors of the risk assessment, affording each of them the weight he deemed appropriate in the circumstances.  He took into account the number and age of the victims, and the periods of offending, as significant factors. The Judge was entitled to do so.

[42]     The Judge may have conflated the issues of age disparity and the victims’ ages but that would have been in Mr Escott’s favour. The relative age of the victims to Mr Escott is important.   I do not accept Mr Escott’s offending against teenagers as opposed to smaller children makes any difference here.  The Act is concerned with sexual  offending  against  children,  that  being  anyone  under  the  age  of  16. The relevance of the imbalance in age was explained in Johnston:28

[45]      … When a Court is dealing with a mature offender who is within the age group of a parental figure to the victim, the innate inequality between a parental/adult position of authority and a child who can be expected to respond intuitively to authority is the feature that reflects the  seriousness of the indecent contact.

[46]     The age range for an offender that would give rise to this concern correlates to the age of the child – younger children are more likely than older children to perceive authority in adults of a younger age. For a child between say 12 and 15, a similar power imbalance would generally confront him or her with a mature adult anywhere in an age range between approximately 35 and

50. The seriousness of the power imbalance is inherently recognised in there being a different offence of indecent assault on a person under 16.

[43]     The Judge acknowledged the significant period of time which has elapsed since the offending and recognised that mitigated against Mr Escott being on the Register.

27     Kumar v R [2015] NZCA 460 at [81]–[83], referring to Austin, Nichols & Co Inc v Stichting

Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

28     Johnston, above n 4.

[44]     An elderly person may be less inclined to reoffend if that factor is associated with others such as infirmity, considerable remorse and a significant period of not offending.   Those factors are present to some degree on these facts, although not supported by any evidence or assessments by medical professionals. The Judge treated Mr Escott’s age as “reasonably neutral”. While a somewhat more generous approach could have been taken to this aspect, in my assessment it does not tip the balance.

[45]     With the exception of the restorative justice process, the Judge addressed and gave weight to the mitigating factors relied on by Ms Scott.  Those factors, in the Judge’s opinion, did not overcome the factors which pointed towards establishing the risk of a serious child sex offender.

[46]     Restorative justice was not specifically mentioned in the Judge’s analysis.  It is commendable that Mr Escott undertook a restorative justice process; it provided him an opportunity to accept responsibility and acknowledge the harm he caused, and for the victim to air his views and emphasise his experience. The Judge did acknowledge the process in his sentencing remarks which immediately preceded the decision on registration. In any event, the restorative justice report stated that Mr Escott attempted to diminish his culpability by, for example, stating that gratification from hugging the victim in the pool was incidental to his primary intention of protecting him.  I note also that only one victim participated in the process.

[47]     The offending covered the period 1979 to 1994.  There were breaks in the offending, for example between 1981 and 1985 and again between 1989 and 1992. He did desist from this behaviour for periods but then resumed it.  I refer to this in light of Ms Scott’s submission that the Court can take some comfort from Mr Escott’s statement that he decided to stop this type of behaviour and did so.

[48]     In my assessment, the Judge analysed the risk correctly.   In circumstances where the offending occurred over such a long period of time (15 years), against a number of vulnerable victims, where there was a considerable age discrepancy between Mr Escott and the victims, and where Mr Escott was in a position of authority and trust in relation to them, this was serious sexual offending against children and indicative of a level of risk commensurate with that of a serious child sex offender.

This is so despite each incident, if considered separately, being at the lower level of sexual offending. The Judge appropriately recognised mitigating factors as part of the overall assessment of the risk.

[49]     In my assessment, the Judge identified and weighed up the requisite factors and he concluded registration was required.  He did so in the context of addressing at the outset the purpose of the Act.  The level of risk was obvious and appropriately considered.

[50]     Finally, the Judge acknowledged the stigma of being on the Register and balanced the assessed risk with the need for registration.  I can see no material error of law or principle in the exercise of the residual discretion.

Result

[51]     For the reasons given, the appeal is dismissed.

Thomas J

Solicitors:

Crown Law, Wellington for Respondent