Forsyth v The the King

[2022] NZHC 3361

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI 2022-443-52

[2022] NZHC 3361

BETWEEN

DONALD BRUCE FORSYTH

Appellant

AND

THE KING

Respondent

Hearing:	22 November 2022
Counsel:	A R Laurenson for Appellant H Bullock for Respondent
Judgment:	12 December 2022

JUDGMENT OF MALLON J

Introduction

[1]    The appellant pleaded guilty to and was convicted of indecent assault1 and doing an indecent act on a boy under 12 (representative)2 in the New Plymouth District Court. He was sentenced to two years and six months’ imprisonment.3 He was automatically registered on the Child Sex Offender Register.

[2]    He appeals his sentence. He contends it was manifestly excessive because the starting point for the representative charge and the uplift for the indecent assault were

1      Crimes Act 1961, s 141 (maximum penalty of seven years’ imprisonment), in force at the time of the offending.

2      Section 132(3) (maximum penalty of 10 years’ imprisonment).

3      R v Forsyth [2022] NZDC 17326 (Judge G F Hikaka).

FORSYTH v R [2022] NZHC 3361 [12 December 2022]

too high and the Judge did not give enough credit for mitigating factors. He also says that, if the appeal is allowed and a home detention sentence substituted, then the Court should exercise its discretion and not order registration on the Child Sex Offender Register.

The offending

[3]    The indecent assault took place on a date between January and May 1999. The appellant was then aged 50 or 51 years old. He frequently visited S and his wife [redacted] at their rural address. One afternoon, in the course of helping out with work at the address, the appellant sat behind S on a 4-wheel quad bike, put his arms around S’s waist and his hands on S’s crotch, and tickled S’s genitals. S initially froze then accelerated to quickly end the ride. Once they ride was over, the appellant grabbed S’s arm, tried to pull it towards his own crotch and said “do you want to grab my big one”.

[4]    The representative charge related to offending between May 2005 and January 2009. The appellant was then aged between 57 to 60 years. C, the victim, was the son of S and aged between 8 and 12 years old. The appellant cared for C on many occasions. The appellant would make C sit on his knee and would place his hands over C’s crotch, either under or over his clothing, on multiple occasions. As C got older, the appellant would stroke C’s penis and masturbate him while C sat on his knee. On several occasions, when putting C to bed, the appellant would hold him down by the arms, tickle him, and put his hands over C’s crotch and tickle his genitals.

[5]    C has suffered anxiety and depression and has had alcohol and substance abuse and other behavioural issues as a result of the offending. C’s mother said that “anger” does not come close to her feelings towards the appellant. S said the appellant’s offending had such an impact on the family that they left New Zealand for a period.

Personal circumstances

[6]    The appellant is now 74 years old. He has no other convictions. He told the pre-sentence report writer that he did not recall touching C in a sexual manner, but if C said that he had, then he must have done so and that is why he pleaded guilty. He

remembered the incident with S but said it was a misunderstanding and he had quickly removed his hands when he realised where they were. He was shocked when he was charged with the offending. The report writer considered the appellant was a low risk of reoffending because of his age and the absence of any other offending history.

[7]    A medical report was obtained for the District Court sentencing. This advised that the appellant suffered suspected early stage Alzheimer type dementia. He suffered from a mild-to-moderate degree of cognitive impairment. It might fluctuate day-to- day but was expected to progressively get worse over time. He presently had sufficient mental capacity to manage his own affairs. He had other conditions and was on a range of medication.

District Court

[8]    The Judge took the representative charge as the lead offending. The aggravating factors were the age difference between the appellant and C, C’s vulnerability, the profound breach of trust the offending involved, the four year time- frame over which the offending occurred, and that the touching became more intrusive as time went on with it progressing to masturbating C. The Judge adopted a starting point of three years and six months’ imprisonment for this charge.4

[9]The Judge uplifted this starting point by six months for the indecent assault on

S. In doing so, he noted that S was not in a position to rebuff the appellant’s unwanted attention while he was driving the quad bike.5

[10]   The Judge deducted 25 per cent for the appellant’s guilty plea. He made no discount for remorse, noting that the appellant maintained a lack of memory about the offending. He allowed a six month reduction for the appellant’s age and health.6

[11]   This meant an end sentence of two years and six months’ imprisonment. Registration on the Child Sex Offender Register was therefore automatic. However, the Judge commented that in his view registration would have been appropriate even

4      R v Forsyth, above n 3, at [12] and [19].

5 At [19].

6 At [20].

if a community based sentence was imposed because of the appellant’s risk of reoffending.7

Starting point

[12]   One of the cases the Judge referred to in discussing the starting point was O(CA653/2009) v R.8 In that case, the Court of Appeal described a three-year starting point as “perhaps stern”.9 The appellant submits there is very little to distinguish that case from the present and that a three and a half year starting point here was excessive.

[13]   However, I agree with the Crown that the appellant’s offending was more serious than O(CA653/2009) v R. That case involved similar touching (over and inside clothing). But this was on six discrete occasions and the offending did not progress to masturbating the victim as occurred here. As against the possibly stern starting point of three years’ imprisonment in that case, a starting point of three years and six months’ imprisonment seems about right.

[14]I have checked this against other cases:

(a)In Anson v R the offending involved representative charges of masturbating in the shower with two young step-grandchildren and touching the genitalia of one of them.10 The Court of Appeal upheld the starting point of four years’ imprisonment for the offending on both victims and considered that, if anything, it was lenient. In doing so, the Court of Appeal accepted that the range for multiple indecency offending on young children was two to four years’ imprisonment.11 The starting point in the present case is consistent with this range and appropriately falls a little below the offending in Anson as the offending in that case involved two victims.

7 At [23].

8      O(CA653/2009) v R [2010] NZCA 609.

9 At [52].

10     Anson v R [2014] NZCA 135.

11 At [49].

(b)Broadly similar is Britow v R, a case involving the defendant rubbing his penis against his young step-daughter’s buttocks and the top area of her genitalia on multiple occasions.12 The Court of Appeal upheld a starting point of three years and three months’ imprisonment as within range.13 A starting point of three months higher than Britow is not excessive.

(c)Paora v R involved a single incident of a 55-year-old man on a 12-year- old victim with whom he had a family connection.14 The defendant touched the victim all over her body, kissed her on her face, mouth, neck and chest and rubbed his exposed penis up and down on her naked body. A starting point of two years and six months’ imprisonment was not challenged on appeal. Given the multiple occasions in the present offending, a three-year and six-month starting point seems about right relative to the offending in Paora.

(d)In R v Thorpe the offending against one of the victims, aged between 10 and 13 years, involved four separate incidents.15 On the first three occasions the appellant had got into the shower with the victim, washed him and masturbated him. On the fourth occasion the victim had woken to find the appellant masturbating him in bed. The High Court Judge adopted a starting point for the offending on this victim of four years and three months’ imprisonment.16 The present offending is more serious than in that case because of the greater instances of offending involved. This suggests that, although three years and six months’ imprisonment was about right, a slightly higher starting point could have been taken without it being out of range.

12     Britow v R [2017] NZCA 229.

13 At [8].

14     Paora v R [2011] NZCA 472.

15     R v Thorpe [2012] NZHC 229, discussed in Anson v R, above n 10, at [45] and [50]–[54].

16 At [53]. The Court in Anson v R relied on this example as supporting the starting point in that case. It was also referred to in the Judge’s sentencing remarks in this case.

Uplift

[15]   The appellant submits the uplift of six months’ imprisonment for the offending on S was excessive given that it was a one-off offence against an adult. He says that if this had been the only charge, then the appellant would likely have been given a non-custodial sentence – community work or community detention and supervision. Taking into account totality, he submits that an uplift of three months’ imprisonment was sufficient.

[16]   I regard the uplift of six months’ imprisonment as stern. The offending involved an adult victim, it involved contact over clothing and it involved a single instance. I agree that it would have resulted in a community-based sentence had it been the only charge. Given the appellant’s age (which might mean that community work would be difficult), that would most likely have involved a short period of community detention of two to four months.

Mitigating factors

[17]   The appellant submits that he should have been given a discount of an additional 10 months. He again refers to O(CA653/2009) v R where the sentencing judge had allowed a 10-month discount. That discount was allowed because: the defendant had no previous convictions and was of previous good character; it was aberrant, out of character behaviour such that the conviction itself would be felt more keenly by him than some others; the pre-sentence report writer considered he was at no risk of reoffending; and his health meant that imprisonment would be more difficult than for healthy inmates.17

[18]   However, the Court of Appeal regarded the 10-month discount as generous, given there had been no guilty plea or acceptance of responsibility.18 While the appellant pleaded guilty here, I am not satisfied that an “additional” 10-month discount is appropriate. The appellant was given a six-month discount for his health and this factor is included in the 10-month discount regarded as generous in O(CA653/2009) v R.

17     O(CA653/2009) v R, above n 8, at [46].

18 At [52].

[19]   It was open to the Judge to decline to give a discount for remorse as it was not demonstrated other than through the guilty plea. Given the absence of remorse, the offer to attend restorative justice did not warrant any discrete discount either.

[20]   The real question is whether the appellant should have been given any credit for previous good character. He did not produce evidence of positive contributions to the community. However, the absence of previous convictions is itself evidence of good character and usually worthy of recognition.19 Whether a discount should be given for absence of previous convictions is more problematic where the offending is over an extended period. This may offset in whole or in part the credit that would otherwise be given.20

[21]   The appellant submitted to the District Court Judge that a discount should be permitted for absence of previous convictions. The Judge did not refer to this in his sentencing remarks but must have taken the view that no discount should be permitted for this factor in addition to the six months allowed for age and health. While a small discount could have been given because the appellant had no convictions prior to the offending against S (when he was 50 years old) and no convictions after the offending against C ended (when he was 60 years old), it was open to the Judge to decline to do so.

End sentence

[22]   I consider that a smaller uplift for the indecent assault could have been taken and a small discount for the absence of previous convictions could have been added to the six-month discount for age and health. However, I am not satisfied that the Judge’s approach, while stern, was manifestly excessive. I am also satisfied that small adjustments to the uplift and the discount would not have reached the point where the end sentence was two years or less. This means that home detention would not have become available for consideration. Nor would there be a discretion regarding registration on the Child Sex Offender Register. Any adjustment would therefore be “tinkering” and it is not the role of a court on appeal to do that.

19     Simon France (ed) Adams on Criminal Law (looseleaf ed, Thomson Reuters) at SA9.23.

20     Adams on Criminal Law, above n 19, at SA9.23. See also Britow v R, above n 12, at [10].

Result

[23]The appeal is dismissed.

Mallon J