Fisher v Police - [2014] NZHC 2189

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-435-000006 [2014] NZHC 2189

DARRON JOHN FISHER

v

NEW ZEALAND POLICE

Hearing: 9 September 2014

Counsel:

I Hard for Appellant
M L Wong for Respondent

Judgment:

10 September 2014

JUDGMENT OF WILLIAMS J

[1] The appellant pleaded guilty to two counts of doing an indecent act with a child under 12. He was sentenced in the District Court to 16 months’ imprisonment.1

[2] On appeal, Mr Fisher argues the Court should have imposed home detention.

The facts

[3] The victim in this case was a five year old girl. Her father and the appellant were close friends. He would babysit the victim and her eight year old brother on
occasion. The offending occurred during such an occasion.

1 R v Fisher DC Masterton CRI-2014-035-000300, 24 July 2014.

[4] The first count relates to an incident in the garage. Mr Fisher took the victim out to the garage while her brother was taking a bath. Mr Fisher and the victim played darts. Mr Fisher said that if either one of them threw three darts into the same hole, that person would have to pull their pants down. He then placed the victim on a chair and pulled down her pants. The victim told Mr Fisher to stop and that she did not like it. He also pulled down his own shorts to reveal his underwear.

[5] The second incident occurred later that evening in the bath. It was more serious. Mr Fisher and the victim bathed together for approximately one hour. Mr Fisher played games with the victim in order to encourage her to feel comfortable while naked with him. For example, he let the victim squirt water into his belly button with an empty shampoo bottle; made squeaking noises with his finer in his belly button; tickled the victim; made farting noises in the water; and pretended his finger was a thermometer placing it on his chest. He also washed the victim’s hair.

[6] At some point the victim’s brother came into the bathroom to use the toilet. The brother said he saw Mr Fisher masturbating and also the victim masturbating Mr Fisher.

The sentencing decision

[7] The learned District Court Judge acknowledged that the nature of the relationship between the victim’s father and the appellant meant that what occurred was a considerable breach of trust. The Judge noted that victim impact statements suggested that recovering from these events will be a long, slow and difficult process for the family. Despite an argument from Mr Fisher’s counsel that the offending was spontaneous, the Judge found that the “circumstances of the evening in question
revealed a premeditated course of conduct leading up to the offending”.2

[8] A starting point of 22 months’ imprisonment was adopted. This was on the basis that the offending in this case…

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.

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Details

Case: [2014] NZHC 2189
Decision Date: 10 September 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Darron John Fisher appealed against the sentence imposed by the District Court, which was a 16-month imprisonment term for two counts of indecent acts with a child under 12 years. The appellant argued that the court should have imposed a sentence of home detention instead. The victim was a five-year-old girl, and the appellant was a close friend of her father, who would babysit her and her brother on occasion. The two counts of indecent acts occurred during one such babysitting session. The first count involved the appellant pulling down the victim's pants after playing darts with her in the garage. The second count involved the appellant spending an hour in the bath with the victim, engaging in various activities to make her comfortable, including masturbating and having her touch his penis. The brother of the victim witnessed the appellant masturbating and the victim masturbating the appellant.

The primary legal issue in the appeal was whether the District Court Judge erred in imposing imprisonment instead of home detention. The appellant's counsel argued that the judge should have considered the appellant's early guilty plea, lack of criminal record, and the fact that he is a mature man with a stable employment history. The Crown argued that the judge's reasons for rejecting home detention – minimisation and the need for treatment – were sound.

The court found that the District Court Judge was well within the bounds of his discretion in refusing home detention, given the appellant's lack of insight and minimisation of the offending. The court agreed with the District Court Judge's assessment that the appellant's actions showed a profound lack of insight, as he claimed there was no sexual element in the activities he engaged in with the victim. The court further found that the appellant's minimisation of his offending, as reflected in the pre-sentence report, provided a valid basis for the judge's decision to reject home detention. Therefore, the appeal was dismissed.

In conclusion, the High Court upheld the District Court's decision to impose a 16-month imprisonment term on the appellant for two counts of indecent acts with a child under 12 years. The court found that the District Court Judge was justified in rejecting home detention as a sentence due to the appellant's minimisation of the offending and the need for treatment.

Orders