G v Police - [2015] NZHC 72

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.

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF APPELLANT PROHIBITED BY S 201
OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-67 [2015] NZHC 72

BETWEEN
G

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 February 2015

Counsel:

R Vigor-Brown for Appellant
N Tahana for Respondent

Judgment:

4 February 2015

ORALJUDGMENT OF KATZ J [Sentence appeal]

Solicitors: Gordon & Pilditch, Crown Solicitor, Rotorua

Counsel: R Vigor-Brown, Barrister, Rotorua

G v NEW ZEALAND POLICE [2015] NZHC 72 [4 February 2015]

Introduction

[1] The appellant, Mr G, was sentenced on 11 September 2014 in the Rotorua District Court to 150 hours of community work and 12 months supervision in respect of one charge of indecent assault against a 13 year old girl.1 As reflected in the end sentence that was imposed, the offending was at the lower end of the scale.

[2] The supervision order had two attached conditions: (a) attendance at psychological counselling; and
(b) not associating or having any contact with any person under the age of

16 except in the presence and under the supervision of a probation officer approved adult.

[3] Mr G appeals against the second condition. His sentence has been suspended, pending the outcome of his appeal.

[4] The primary reason for Mr G’s appeal is that he has four children (all sons) under the age of 16 years. They range in age from seven to fourteen years. The current supervision conditions would prevent Mr G from being alone with them. This is particularly problematic, because Mr G is the primary caregiver for his children while his partner works full-time. If Mr G is unable to be alone with his sons then his partner may need to give up work. She has a responsible position and is the primary breadwinner for the family. If she has to leave her employment this is likely to put considerable financial stress on the family.

Approach to appeal

[5] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other
case, the Court must dismiss the appeal.2

1 Police v Grey DC Rotorua CRI-2014-063-001973, 11 September 2014.
2 Criminal Procedure Act 2011, s 250(3).

[6] The Court of Appeal in Tutakangahau v R has recently confirmed that s

250(2) was not intended to change the previous approach to appeals taken by the courts under the Summary Proceedings Act 1957.3

Factual background

[7] Mr G has no prior convictions for sexual offending. Indeed his only previous conviction, which is for theft, dates back 16 years to when Mr G was a teenager. He is now 34 years old.

[8] The victim is the niece of Mr G’s partner. She came…

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.

Continue reading G v Police

Details

AGLC: G v Police [2015] NZHC 72
Case: [2015] NZHC 72
Decision Date: 4 February 2015

CaseChat Overview and Summary

In this case, the appellant, Mr G, appealed against a supervision condition imposed as part of his sentence for a charge of indecent assault against a 13-year-old girl. The Rotorua District Court had sentenced Mr G to 150 hours of community work and 12 months of supervision, with conditions that he attend psychological counselling and refrain from associating or having any contact with any person under the age of 16, except in the presence and under the supervision of an approved adult. Mr G's appeal focused on the second condition, which he argued would prevent him from being alone with his four sons, aged between seven and fourteen, as he is their primary caregiver while his partner works full-time. The court had to decide whether the supervision condition could be varied to allow Mr G unsupervised contact with his sons, considering the new information provided by an independent psychologist.

The court considered the appeal under Section 250(2) of the Criminal Procedure Act 2011, which allows for the appeal to be allowed if there is an error in the sentence imposed and a different sentence should be imposed. The court noted that the psychologist's report, which was not available at the time of sentencing, concluded that Mr G's risk of offending against his sons was extremely low. The report noted that Mr G had no history of sexual interest in boys and had unsupervised contact with his sons throughout their childhood, including during the time pending sentencing and appeal, without any concerns regarding his behaviour. The Crown did not oppose varying the supervision condition based on this new information. The court concluded that the new information indicated that the risk associated with Mr G having unsupervised contact with his sons was extremely low and that the relevant supervision condition could be safely varied.

The court allowed Mr G's appeal to the extent that the condition prohibiting him from associating with any person under 16 was varied. Mr G is not to associate or have any contact with any person under the age of 16 (save for his own children) except in the presence or 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. This outcome balanced the need to protect potential victims of sexual offending with the practical considerations of Mr G's role as the primary caregiver for his children.

Orders