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 to stay with Mr G’s family in early 2013, when she was 13 years old.  She had a history of difficulties at school, possibly stemming from prior sexual abuse that occurred when she was aged nine.

[9]      One evening Mr G and his four sons were sleeping together in a large bed, made up of a double and single bed pushed together.  The victim joined them in the bed.  Mr G and the victim were both fully clothed.  Mr G awoke to find the victim touching his penis.  He put his hand on the outside of her vagina, over her clothes, for approximately 2 minutes.  He then left the room.

[10]     Mr  G  was  described  as  co-operative  by  the  police.    He  admitted  his offending, was remorseful, and stated that he knew that what he had done was wrong.   Other evidence before the Court supports the view that Mr G, who was himself the victim of sexual abuse as a child, is deeply remorseful.  He is committed to fully addressing his offending and engaging pro-actively in any counselling or other interventions directed by his probation officer.  He has strong support from his family.  He understands the gravity of his actions and is incentivised to prevent any recurrence.

Should the supervision condition be varied to enable Mr G to associate with his own children?

[11]     In support of his appeal Mr G has obtained a report from an independent psychologist, Dr Erin Eggleston.  That report assesses his risk of offending against

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

children under 16 generally and against his sons in particular.  This information was not available to the sentencing Judge.   Nor, obviously, was it available to the prosecution when Mr G was sentenced.

[12]     In  light  of  this  new  information  the  Crown  does  not  oppose  Mr  G’s supervision conditions being varied to enable him to have unsupervised contact with his sons.   In my view that is an appropriate concession, for the reasons I outline below.

[13]     The  pre-sentence  report  that  was  before  the  sentencing  Judge  classified Mr G’s risk of reoffending, and risk of harm, as medium, although there is little analysis to underpin that assessment.  Nor is there any specific discussion of the risk of Mr G offending against his own children.   The report did note, however, that Mr G has shown a willingness to address his offending, and had participated fully in family group conferencing and restorative justice workshops. He expressed a willingness to attend counselling, and the probation officer recommended a referral to a department psychologist.

[14]     The report that has now been provided from Dr Eggleston addresses Mr G’s offending risks in considerably more detail than the pre-sentence report.   Further, Dr Eggleston  has  specialty  expertise  in  this  area  including  former  Corrections Department experience.  Dr Eggleston interviewed Mr G in depth and administered several psychometric tests to him.   The overall tenor of Dr Eggleston’s report is positive.  In relation to Mr G’s sons, he concludes that “I do not think [Mr G’s] boys are at risk from him”.  In relation to girls under 16 years old, he assesses Mr G as being low risk, but points out that low risk does not mean no risk.  “The fact that [Mr G] has offended makes him of greater risk than the general public to girls under

16 years of age”.  The key risk factors (in relation to offending against under 16 year old  girls)  are  identified  as  alcohol  use  and  communal  sleeping  arrangements. Dr Eggleston notes that Mr G’s own children now have bunk beds rather than shared beds.

[15]     I am satisfied, based on the new information before the Court, that any risks associated with Mr G having unsupervised contact with his sons is extremely low. He has no apparent history of sexual interest in boys.   He has had unsupervised

contact with his sons throughout their childhood, including several years as their full-time  caregiver. This  contact  has  continued  pending  sentencing  and  most recently,  pending  appeal.   There is  no  suggestion  of any problems  or  concerns regarding Mr G’s behaviour with his own children.  I am satisfied, based on all the information before me, that the relevant supervision condition can be safely varied to enable Mr G to have unsupervised contact with his sons.

[16]     I  emphasise  that  I  make  no  criticism  of  the  sentencing  Judge.    I  have considered the matter afresh, based on new evidence that was not available to him. Further, it appears that the Judge may have been advised that if he did not impose the non-association  condition  it  would,  in  any  event,  have  to  be  imposed  by  the probation service as a mandatory condition of supervision.   That is incorrect. Although the probation service has the power to direct an offender not to associate with  a  particular  person  or  group  of  people,  the  exercise  of  that  power  is

discretionary.4  The   probation   service   would   need   to   consider   all   relevant

information, as I have, in order to determine whether a “blanket ban” on Mr G associating with any child under 16 (including his own children) is necessary and justified in all the circumstances of this case.

Result

[17]     The appeal is accordingly allowed to the extent that the current condition prohibiting Mr G from associating with any person under 16 is varied as follows:

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.

Katz J

4      Sentencing Act 2002, s 49(1)(h).