Goatley v The the Queen
[2022] NZHC 414
•10 March 2022
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2022-412-5 [2022] NZHC 414
BETWEEN LUKE MALACHI GOATLEY
Appellant
AND
THE QUEEN
Respondent
Hearing: 4 March 2022 (By way of VMR) Appearances:
J A Westgate for Appellant
C E R Power for Respondent
Judgment:
10 March 2022
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 10 March 2022 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
GOATLEY v R [2022] NZHC 414 [10 March 2022]
Introduction
[1] Luke Goatley pleaded guilty to a charge of indecent assault1 and was convicted2 and sentenced3 by Judge D P Robinson in the Dunedin District Court to six months’ community detention, 275 hours’ community work, nine months’ supervision, and ordered to pay $2,000 emotional harm reparation. The Judge declined to grant a discharge without conviction. Mr Goatley now appeals against that decision. In the alternative, Mr Goatley appeals against the sentence on the basis it was manifestly excessive.
Background
[2] In the evening of 8 July 2020, Mr Goatley was socialising in the student quarter of Dunedin. He had been drinking with friends at a restaurant before walking to Howe Street, where several flat parties were occurring. Mr Goatley entered a Howe Street address where 30 to 50 people were socialising, drinking and playing games. He was neither invited to the party nor known to any of the occupants.
[3] At around 11 pm, the victim, who was at the time a 20-year-old student unknown to Mr Goatley, went to bed in her partner’s bedroom. Her partner was a tenant at the address. The gathering disbanded at around 12.30 am and people made their way to other houses or parties nearby. At some time between 12.30 am and 3 am, Mr Goatley removed his shoes and entered the house and bedroom where the victim was asleep. The room was dark and had no lighting. Mr Goatley removed his jeans and climbed into the bed over the top of the victim. He started kissing her. In the mistaken belief it was her partner kissing her, the victim allowed this to occur but asked him why he had shaved his beard. Mr Goatley then rubbed and touched the victim’s body. In response she took off her jeans and started touching her vagina. Mr Goatley then touched the victim’s genitalia, continuing until the victim told him to stop because it was “gross”.
1 Crimes Act 1961, s 135 – maximum penalty of seven years’ imprisonment.
2 R v Goatley [2022] NZDC 2165.
3 R v Goatley [2022] NZDC 2354.
[4] At around 4 am, the victim’s partner entered the room to go to bed and discovered Mr Goatley in bed with the victim. At this stage the victim realised Mr Goatley was a complete stranger. Mr Goatley hurriedly put his jeans back on and was escorted from the room before attempting to escape. He was detained by Campus Watch until police arrived.
[5] When spoken to by police, Mr Goatley admitted he had not been invited to the party nor did he know the victim. He admitted touching the victim but declined to describe the sexual nature of his actions. He further admitted having never spoken to the victim but claimed he had permission to touch her.
District Court decision
[6] Judge Robinson approached the question of whether to discharge Mr Goatley under s 106 of the Sentencing Act 2002 by considering the criteria for granting a discharge provided in s 107.
[7] In assessing the gravity of the offending, the Judge noted the circumstances in which indecent assault can occur cover a wide range of offending. In this case he identified the following aggravating factors:
(a)Mr Goatley knew someone was in bed at the outset but remained;
(b)the victim was asleep, affected by alcohol, vulnerable and entitled to feel safe in her boyfriend’s bed;
(c)the duration of the incident, which was not fleeting, as Mr Goatley was present for about an hour;
(d)the nature and extent of the offending, which involved kissing, and rubbing and touching her body and genitalia;
(e)the fact Mr Goatley was not invited to the address;
(f)the extent of the emotional harm suffered by the victim; and
(g)the fact Mr Goatley persisted in the assault despite the victim querying about his shaved beard.
[8] Balanced against these, the Judge took into account the following mitigating factors:
(a)Mr Goatley’s youth, being 18 years old at the time, which was viewed as relevant in two ways; it meant he had not fully matured in his emotional development and cognitive functioning, and it also exaggerated the impact of conviction;
(b)his socially naïve background;
(c)his lack of prior convictions and that his offending was out of character;
(d)he had demonstrated remorse and made an offer to pay emotional harm reparation;
(e)his risk of reoffending somewhere between nil and low;
(f)he had engaged with a psychologist and sought counselling for his alcohol use;
(g)his guilty plea, despite it not being entered at the earliest opportunity;
(h)his willingness to engage in restorative justice; and
(i)the absence of violence.
[9] The Judge made clear that, although the victim reciprocated to an extent through her mistaken belief in his identity, this did not affect his culpability and the victim was in no way responsible for what occurred.
[10] The Judge then referred to the information contained in the pre-sentence report and reports from an alcohol counsellor and psychologist. The counsellor noted the
escalation in Mr Goatley’s drinking when he started university and that on the day of the offence he had consumed in excess of 25 units of alcohol. It was observed that Mr Goatley had since abstained from alcohol, and had engaged well with counselling. The Judge noted Mr Goatley impressed the psychologist and pre-sentence report writer as remorseful, although the latter expressed reservations as to how Mr Goatley might react in intimate circumstances in the future. On this basis, the Judge considered Mr Goatley’s risk of reoffending was minimal, particularly if he avoided excessive alcohol use and focused on his studies. However, his conclusion on the gravity of the offending was still that it was properly characterised as serious.
[11] The Judge then considered the direct and indirect consequences of conviction. He accepted many of the general consequences of conviction had already occurred – Mr Goatley had been excluded from his hall, been ostracised and isolated from friends (which had an impact on his studies) and faced the embarrassment of media attention. The Judge also took into account the real and appreciable risk that conviction would adversely impact on his employment and career prospects, but acknowledged he had demonstrated an ability to obtain employment and was highly regarded by his current employer. He assessed any consequences on travel were speculative.
[12] Although acknowledging the general consequences, including on career and employment, the Judge was not satisfied the consequences of conviction were out of all proportion to the seriousness of the offence and refused the application for a discharge. He considered there was a need for a consistent message that indecent or sexual assault of intoxicated women would be responded to seriously. He stated that an individual’s status as a student and their relative youth would generally not be sufficient to result in a discharge. The Judge further observed that the authorities supported the refusal of a discharge without conviction in these circumstances.
[13] In sentencing Mr Goatley, Judge Robinson adopted a starting point of 15 months’ imprisonment. The Judge applied a discount of 20 per cent for his guilty plea and, after having regard to his remorse, previous good character and lack of prior convictions, considered the total deductions afforded would result in an end sentence where there would be no value in imposing home detention. Instead, the Judge determined it was appropriate to sentence Mr Goatley to a combination of sentences
which would adequately reflect the seriousness of the offence and provide a framework for him to move forward. The Judge sentenced Mr Goatley to six months’ community detention, with a curfew between 6 pm and 6 am starting on 11 February 2022, 275 hours’ community work, nine months’ supervision (on the special conditions contained in his pre-sentence report) and ordered him to pay $2,000 emotional harm reparation. Finally, the Judge provided Mr Goatley with a warning under the three strikes regime.
Principles on appeal
[14] The Court may grant a discharge without conviction under s 106 of the Sentencing Act 2002 (the Act) only if it is satisfied, under s 107, that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.4 Appeals against the proportionality test under s 107 are by way of rehearing, with the appellate Court making its own assessment of whether the criteria are established.5 If a discharge without conviction should have been granted, then there will have been a material error by the sentencing Judge, or a miscarriage of justice will have occurred for any other reason, and so the appeal against conviction must be allowed.6
Submissions
Appellant’s submissions
[15] On behalf of Mr Goatley, Mr Westgate submitted the Judge erred in assessing the gravity of the offence as serious and that it should have been characterised as “moderately high” and, after allowance was made for personal mitigating factors, as low to moderate. Mr Westgate did not disagree with the aggravating factors identified by the Judge but submitted the offending arose in unusual circumstances and the harm caused to the victim did not extend beyond that which is inherent in the offence. Without wishing to blame the victim for what occurred, Mr Westgate submitted that her actions had contributed to the extended duration of the incident. In this respect, he
4 Sentencing Act 2002, s 137.
5 H v R [2012] NZCA 198 at [35]-[36].
6 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].
sought to compare the offending with Marshall v Police where the victim immediately objected to the offending which involved the defendant touching her buttock in bed.7
[16] He further submitted Mr Goatley’s significant level of intoxication is relevant to the assessment of the gravity of the offending, as it was not predatory or pre-meditated. It was argued Mr Goatley’s personal mitigating factors were substantial but appeared to make no difference to the Judge’s assessment of the gravity of the offence. He emphasised Mr Goatley’s youth, his excellent character, his remorse and the rehabilitative efforts.
[17] In relation to the consequences of conviction, Mr Westgate submitted the Judge did not quantify their weight or the impact conviction would have on Mr Goatley’s employment and career prospects. It was argued those consequences are severe. In particular, as a diligent university student yet to have an opportunity to establish a career for himself, Mr Goatley is vulnerable to the likelihood a future employer will favour another candidate without a criminal conviction. A future employer is not likely to enquire into the details which mitigate the seriousness of the offending. Mr Westgate also maintained that the stigma of a conviction for sexual offending is especially damaging to a young man’s future.
[18] Mr Westgate therefore submitted the consequences of conviction are out of all proportion to the gravity of the offence. He argued the purposes and principles of sentencing can be effectively served by way of a discharge without conviction and an order for an emotional harm payment.
[19] However, in the event the Court dismissed the appeal, Mr Westgate submitted the sentence imposed was manifestly excessive. He maintained a supervision sentence is unnecessary and inappropriate under s 46 of the Act given the rehabilitative steps Mr Goatley has already taken and his minimal likelihood of reoffending. Further, he submitted community detention is excessive when compared to the sentence imposed in the similar case of Cabuyao v R.8 Mr Westgate argued the Judge did not have regard to the considerable disruption to Mr Goatley’s studies at Otago University caused by
7 Marshall v Police [2014] NZHC 2681.
8 Cabuyao v R [2021] NZHC 3395.
his being curfewed to Otatara near Invercargill. On this basis, he submitted the end sentence could be one of conviction, an order to pay emotional harm reparation and, if deemed necessary for punitive purposes, community work.
Respondent’s submissions
[20] For the Crown, Mr Power submitted it was open to the Judge in his discretion to conclude a conviction was not out of all proportion to the gravity of the offending. He accepted the Judge did not articulate how the personal mitigating factors affected the gravity of the offending and that, when those factors are taken into account, the offending may be characterised as moderately serious. However, he argued that the victim suffered significant harm and the appellant’s assertions that the victim’s actions led to the assault being more than fleeting amounted to victim blaming for Mr Goatley’s unlawful conduct. Mr Power emphasised the victim’s vulnerability was an aggravating factor and he had no right to be in her room uninvited and offend against her.
[21] Mr Power submitted the Judge appropriately identified Mr Goatley was likely to suffer adverse consequences in relation to his employment and career prospects and weighed these matters in his decision. He submitted that unlike the authorities cited by Mr Westgate, the appellant here is an adult and is charged with non-consensual sexual offending. He emphasised the question is whether consequences of conviction are out of all proportion to the gravity of the offence and not whether the appellant will make a worthwhile contribution to society.
[22] Finally, Mr Power submitted the combination of sentences imposed were appropriate in the particular circumstances of this case and the starting point adopted was in the range the appellant agreed may be appropriate. He argued the content and recommendations of the psychologist’s report demonstrate further treatment or counselling is necessary, meaning the court could be satisfied the supervision sentence was needed to reduce the likelihood of Mr Goatley reoffending.
Analysis – appeal of refusal to grant a discharge without conviction
[23] Where a person is found guilty or pleads guilty, s 11(1)(a) of the Sentencing Act requires the Court to consider whether they might be more appropriately dealt with by way of discharge without conviction under s 106. Section 106 of the Act provides that if a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
[24]Section 107 governs the exercise of that discretion:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[25] This requires a three-step analysis.9 Firstly, to assess the gravity of the offence, which includes taking into account all aggravating and mitigating factors of both the offending and the offender.10 Secondly, the direct and indirect consequences of conviction for the offender must be assessed. There must be a “real and appreciable risk” that the consequence will occur.11 Finally, only if the court is satisfied that these consequences are “out of all proportion” to the gravity of the offence may it consider exercising its discretion to discharge the defendant without conviction. There is no legal onus on a defendant to establish this statutory test but the court must be satisfied its requirements have been met.12
9 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]. See Sok v R [2021] NZCA 252 at [40].
10 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; DC (CA47/2013) v R [2013]
NZCA 255 at [35].
11 DC v R, above n 10, at [43].
12 R v Taulapapa [2018] NZCA 414 at [23]; R v Hughes, above n 9, at [49] and [53].
Gravity of the offending
[26] As mentioned above, it is settled law that the gravity of the offence in this context takes into account the aggravating and mitigating circumstances of the offending and the offender.13
[27] As was comprehensively outlined by the sentencing Judge, a number of aggravating factors were present here. Of particular note, is that the offending was not fleeting but Mr Goatley remained there for at least an hour, during which time he made sustained intimate contact with the victim by kissing her and rubbing and touching her body and genitalia. He also persisted in the assault despite the victim enquiring about his shaved beard, which should have clearly indicated to him that the victim was mistaken as to his identity. Furthermore, the emotional harm to the victim was significant with her being treated for anxiety and depression.
[28] Mr Westgate sought to argue the circumstances of the offending to some extent diminished its seriousness. He argued Mr Goatley’s intoxication was relevant to the assessment of the gravity of the offence as it demonstrated it was not predatory or pre-meditated but arose in the context of substantial disinhibition. However, I do not accept these submissions. The summary of facts records the statements Mr Goatley made to police immediately after the offending, in which he admitted not being invited to the party or knowing the victim, admitted touching the victim (while being reluctant to describe the sexual nature of his actions) and claimed he had permission to touch her. These comments indicate Mr Goatley’s recollection and understanding was not so affected by alcohol that he could not recall what had occurred. Further, s 9(3) of the Act clarifies that the court must not take into account by way of mitigation that the offender was, at the time of committing the offence, affected by the voluntary consumption of alcohol. It follows that there is no room to consider how Mr Goatley’s consumption of alcohol led to a circumstance that might otherwise be treated as a mitigating factor.14
13 Sok v R, above n 9, citing Z v R, above n 10, at [27]-[28], citing A (CA747/2010) v R [2011] NZCA 328 at [25] and affirmed in DC v R, above n 10, at [34]-[35].
14 See Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [SA9.24].
[29] Mr Westgate also submitted it was the victim’s actions that led to the incident being an extended one, as she removed her jeans and commenced touching her own genitalia. In support, he referred to Marshall v Police.15 Mr Westage submitted that if the victim here had realised what was happening and immediately objected, as in Marshall, the offending would have only been brief.
[30] I reject this submission outright. As Mr Power responded, such a submission, although made with some delicateness, amounts to blaming the victim for Mr Goatley’s unlawful conduct. Mr Goatley had no right to invade the victim’s personal space in the manner he did and her vulnerability to his approach cannot be treated as a factor mitigating the seriousness of his offending. While the victim was not sober enough to immediately repel Mr Goatley as in Marshall, she queried why the person she thought was her boyfriend had shaved his beard. Mr Goatley persisted despite it then being clear she was labouring under a mistake as to his identity. That she was so mistaken and reciprocated to an extent does not mitigate Mr Goatley’s offending. In a similar way, I do not accept the submission that the harm caused to the victim does not extend beyond the type of harm inherent in the offence of indecent assault. As is evident from the mental health issues the victim has sought assistance with subsequent to the offending, she suffered significant harm.
[31] I now turn to consider the mitigating factors of the offending and offender, which I accept here are significant. A key factor is Mr Goatley’s youth (he was aged 18 at the time of the offending) which, as the sentencing Judge identified, goes to the cognitive, emotional and psychological immaturity of a young person, their reduced ability to make wise judgments, and exacerbates the impact of any conviction.16 I accept the lack of consequential thinking and impulse control associated with youth likely played a large role in Mr Goatley’s offending, especially when paired with his sudden immersion in student drinking culture after coming from what the Judge described as a “socially naïve background”.
15 Marshall v Police, above n 7.
16 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446. See also R v M [2014] NZHC 1848 at [29], where the Court noted adolescent boys do not reach full development of their brain functioning until their early to mid-20s.
[32] A further mitigating factor is Mr Goatley’s lack of any prior convictions and his previous good character. References were before the court from Mr Goatley’s high school and from his mother. These testify to the fact Mr Goatley is a conscientious and self-motivated student who has achieved well academically (including completion of Duke of Edinburgh awards and receiving a university scholarship) and contributed to the school community. Mr Goatley also impressed the psychologist and pre-sentence report writer as genuinely remorseful, having offered to pay emotional harm reparation to the victim, shown a willingness to attend restorative justice, and pleaded guilty (albeit only having entered it some 11 months after being charged with the offence). Mr Goatley has additionally taken various rehabilitative steps, which include maintaining abstinence from alcohol, attending sessions with an alcohol and drug counsellor, and attending a psychologist for a full assessment. Given the measures Mr Goatley had taken, he was also assessed by the pre-sentence report writer and psychologist as presenting a low to minimal risk of reoffending.17
[33] Mr Westgate argued that to continue to describe the gravity of the offence as serious despite these mitigating factors is effectively to place no weight on them. Although it is accepted the Judge did not articulate or quantify how these personal mitigating factors affected the gravity of the offending, which he assessed as serious, I do not agree that he placed no weight on them. In my assessment, weighing all the aggravating and mitigating factors of the offence and those personal to Mr Goatley, the offending is properly characterised as being moderately serious. Despite his significant mitigating factors, I do not consider a sustained indecent assault on a vulnerable victim in her partner’s bed can be categorised as low level offending.
Direct and indirect consequences of a conviction
[34] The District Court Judge identified the primary consequence of conviction was a real and appreciable risk it would impact on Mr Goatley’s employment and career prospects.18 However, Mr Westgate submitted the Judge failed to quantify the impact of those consequences which, in his submission, are severe in light of his age, stage of life, and the stigma attached to sexual offending.
17 While it also said he presented a “medium risk of harm to others” this appeared inconsistent with the assessment of reoffending risk and was not signposted by anything else in the report.
18 R v Goatley, above n 2, at [65]-[66], citing R v M, above n 17, at [38].
[35] In R v Taulapapa, the Court of Appeal summarised some of the considerations bearing on the assessment of the consequences of a conviction on a young offender’s future employment or career prospects:19
…
(a)Conviction carries a social stigma which the law sustains by recording and publishing convictions. It may affect a person’s career, but that consequence must normally yield to the employer’s right to know. This principle extends to independent bodies charged with assessing the character or suitability for a particular career. It applies to all offenders for whom convictions are recorded, including the young.
(b)The consequence may be severe if employers are unwilling to look behind the conviction to consider the person’s merits and that reaction is unfair to the offender in the sense that the conviction itself ought not exclude them from the career or job concerned. Such risk may arise where the conviction speaks to character or records a serious offence but does not fairly reflect the offender’s character or culpability. Theft may be an example of an offence that may lead employers to reject an applicant without further inquiry.
(c)Some judges have reasoned that where youth, a transitory condition, explains offending, an employer may be willing to make allowances for it, especially where the offender is otherwise a person of good character. Others have reasoned that youth is a disadvantage because the offender has no established skill or history of training or employment that might persuade an employer to take a closer look.
(d)The court may assume that applicants with convictions are likely to be excluded without inquiry where employers must filter many applications before arriving at a shortlist for interview; this may apply particularly to unskilled or semi-skilled work.
(e)The consequences of conviction may be severe where an offender points to a specific career or job to which conviction is likely to present a barrier; and that may be especially so where the offender has already spent some time training for that career.
(f)… the consequences may also be severe where the offender points only to general consequences for a young person looking for any employment suited to his or her talents. That may be so where, as noted above, employers are unwilling to consider the young person on their merits.
(footnotes omitted)
[36] Here, I agree there is a real and appreciable risk Mr Goatley’s employment and career prospects will be adversely affected, albeit not to the level of being severe. The
19 R v Taulapapa, above n 12, at [42] (footnotes omitted).
stigma of a conviction, especially for sexual offending, is likely to put Mr Goatley at a disadvantage in finding potential future employment. Mr Goatley is working towards completing a Bachelor of Commerce degree and says he hopes to work in a managerial role in the future. I accept that the heightened stigma associated with sexual offending perpetrated against a young woman may mean prospective employers are unwilling to look behind the conviction to consider the merits of Mr Goatley’s character. However, the fact he is currently in employment, albeit part time employment, while he completes his studies, demonstrates the conviction is not a complete barrier to employment. He is also highly regarded by his current employer. Given Mr Goatley’s many positive attributes I consider he is still highly likely to gain employment in his chosen field given this track record.
[37] I also note that the provisions of the Clean Slate Act will apply to Mr Goatley provided he completes his sentence and completes the rehabilitation period of seven years without being convicted of an offence.20 In any event, I do not consider the impediment of a conviction of this type will be an insurmountable barrier to Mr Goatley’s employment prospects.
Are the consequences of conviction out of all proportion to the gravity of the offence?
[38] It is not enough that the consequences of a conviction outweigh the gravity of the offending – significantly more is required. The consequences must be out of all proportion to the gravity of the offending before the court has jurisdiction to grant a discharge without conviction.21
[39] The gravity of Mr Goatley’s offending was at least at a moderate level of seriousness. It involved a sustained indecent assault on a vulnerable student in her partner’s bed where she was entitled to feel safe, but there were also significant personal mitigating factors here including Mr Goatley’s youth, his previous good character, his remorse, and his rehabilitative efforts. In terms of the consequences of a conviction, there is a real and appreciable risk that the stigma of an indecent assault conviction will disadvantage Mr Goatley in obtaining employment and gaining a
20 Criminal Records (Clean Slate) Act 2004, s 7.
21 R v Smyth [2017] NZCA 530 at [12].
foothold in a career. However, on a careful review of the evidence, I am not persuaded that these consequences are out of all proportion to the gravity of the offending such that this Court may exercise its discretion to order a discharge without conviction.
[40] I consider Mr Goatley should be commended for his efforts to address the causes of the offending, to make amends and in not seeking to conceal the fact of his offending. He also appears to present a very low risk of reoffending. Notwithstanding these factors, I agree with Judge Robinson that it is in the interests of deterrence and denunciation that the courts send a strong message that indecent or sexual assaults of intoxicated women will be met with a serious response. I consider a conviction here is required to acknowledge the gravity of such offending, which is not disproportionately outweighed by the fact the offender is a young university student, who should be supported to put this incident behind him. A conviction is also required to ensure consistency with previous decisions on applications for discharge for indecent assault, which involved less serious offending.22 Consequently, the appeal against the refusal to discharge without conviction is dismissed.
Analysis – appeal against sentence
[41] The disputed elements of the sentence are the sentence of six months’ community detention, with a curfew between 6 pm and 6 am to be served at an address just outside Invercargill, and of nine months’ supervision (on the special conditions contained in his pre-sentence report).
[42] Section 46 of the Act provides guidance on the imposition of a supervision sentence:
46 Guidance on use of sentence of supervision
A court may impose a sentence of supervision only if the court is satisfied that a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
See Dyer v R [2021] NZCA 332; R v Aylwin [2007] NZCA 458; Soloma v R [2018] NZHC 2000;
R v Popeea [2015] NZHC 1882; Marshall v Police, above n 7; and T v Police [2019] NZHC 533.
[43] Mr Westgate submits such a sentence is not warranted in this case given the steps Mr Goatley has already taken to ensure his rehabilitation. I accept that the reports provided by the drug and alcohol counsellor and by the psychologist describe an individual who has made positive changes to address the factors which contributed to the offending. In particular, I note that Mr Goatley has ceased alcohol use, reinstated a physical exercise regime and is using other coping strategies as are outlined in the report of the drug and alcohol counsellor, Mr Bryce Hay. Similarly, the psychologist, Mr Brian Dixon, notes that those he has spoken to in the course assessing Mr Goatley “have attested to his markedly increased level of self-awareness and application of self-management strategies since that event”.
[44] While it suggested that Mr Goatley might be assisted by attending counselling sessions to address any difficulties with anxiety and/or impaired confidence in social situations or relationship development, there is some merit in Mr Westgate’s submission that this type of counselling is not likely to be available through the Department of Corrections. To a large extent, therefore, I accept that the likelihood of future offending is already minimal as rehabilitation has already been undertaken and this does call into question the need for the lengthy sentence of intensive supervision.
[45] Mr Westgate also challenged the imposition of a sentence of community detention. As Mr Dixon noted, Mr Goatley’s confinement to a residence in Southland would have a potentially “disproportionate effect” on Mr Goatley given “the likely disruption that would cause to his academic studies at the University in 2022”. In my view, this factor has not been taken account of by the Judge. It would preclude him from attending the Dunedin campus for most of this academic year.
[46] Furthermore, as Mr Westgate noted in oral submissions, given the likely end sentence of home detention would perhaps be only three months, a sentence of six months’ community detention with a curfew between 6 pm and 6 am is, in some ways, more punitive (particularly combined with the other aspects of sentence) than the sentence of home detention would have been. This is reinforced by the fact the Judge observed that with deductions Mr Goatley would “end up with a sentence at a point where I do not think there is value in home detention as a sentence”.
[47] In my view, too little regard was had to whether a sentence of supervision was required to reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender, and to the impact a sentence of community detention would have on Mr Goatley’s ability to return to his studies in Dunedin. In these particular circumstances, I consider the combination of a significant sentence of community work, six months’ community detention, an emotional harm reparation payment and intensive supervision was manifestly excessive.
[48] In my view, a short sentence of supervision was warranted simply to ensure that Mr Goatley is on track with his self-initiated rehabilitation. The elements of deterrence and denunciation are sufficiently met by the emotional harm reparation payment ordered, and the requirement to complete 275 hours’ of community service, which is a significant sentence in its own right.
Result
[49] The appeal against the refusal to grant a discharge without conviction is dismissed.
[50] The appeal against sentence is allowed. The sentence of nine months’ supervision is reduced to a sentence of six months’ supervision on the same conditions. The sentence of community detention is quashed. The sentence of 275 hours’ community work and the order to pay emotional harm reparation of $2,000 both stand.
Solicitors:
RPB Law, Dunedin
Copy To:
Mr J A Westgate, Barrister, Dunedin
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