Goose v Police

[2017] NZHC 2453

THE APPELLANT’S NAME IS SUPPRESSED UNTIL NOON FRIDAY, 13 OCTOBER 2017.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI 2017-485-44

[2017] NZHC 2453

BETWEEN

ANDREW GOOSE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

3 October 2017

Counsel:

J Griffiths for Appellant

C M Gisler for Respondent

Judgment:

6 October 2017

JUDGMENT OF SIMON FRANCE J

[1]        Mr Goose, now aged 20, was sentenced to 25 months’ imprisonment for six charges of sexual offending in relation to young children.1 He appeals two aspects of his sentence:

(a)the length; and

(b)the refusal to grant permanent name suppression.

[2]        If successful as regards length, two consequent issues will arise – home detention and placement on the child sex offenders register.

1      R v Goose [2017] NZDC 20053.

GOOSE v POLICE [2017] NZHC 2453 [6 October 2017]

Offending2

[3]There are two victims.

[4]        Mr Goose met the first victim, V1, at a holiday programme. They became friends with Mr Goose assuming the role of a big brother.

[5]        The first offending occurred when V1 was 10, and the appellant 17. V1 expressed curiosity about sexuality. This led to both boys removing their trousers and the appellant lying behind V1. He put his penis against V1’s buttocks and simulated sex. This conduct was repeated on numerous occasions although after the first time the boys remained clothed. Mr Goose would on occasions unsuccessfully seek to remove or have V1 remove his pants. On some of these occasions Mr Goose masturbated while behind V1 and also placed V1’s hand on his penis while doing so.

[6]        On other occasions Mr Goose unsuccessfully asked V1 to perform oral sex on him. The appellant regularly masturbated in front of V1. On one occasion when their respective ages were 12 and 19, the appellant more forcefully held V1 down, removed his pants, and masturbated above him. Overall the offending spanned about a year.

[7]        The offending against V2 overlapped with the end period of the offending against V1. It consisted of masturbating in V2’s presence. The conduct was obvious to V1 but he did not see the appellant’s genitalia.

[8]Mr Goose admitted the conduct, some of which he disclosed.

Sentencing

[9]        The District Court took a starting point of three years’ imprisonment which is not challenged on appeal. In its submissions seeking to uphold the sentence as not manifestly excessive, the Crown submits a higher starting point was possible. I do not agree in the sense that the starting point seems to me to be about right, but if anything shaded towards the higher end of the spectrum. Without ever minimising sexual

2      Mr Goose’s name is not to be suppressed. Accordingly, the offending will be described with limited detail to minimise risks of identifying the victims.

offending involving children, the conduct concerning V2 is at the lower end of the scale. V1 is more serious but involves minimal skin on skin conduct, and no penetration of any kind.

[10]      The District Court gave a 30 per cent discount for all matters of mitigation. That is the real issue on the appeal. It was not explained how the 30 per cent was made up.

Decision

[11]      I have no doubt 30 per cent was insufficient. The Crown at sentencing accepted the pleas were at the earliest time and merited the standard 25 per cent discount. I agree this is so, particularly with child sex offending where an early plea is so advantageous to the victims and their families. Here the offender also clarified the extent of the offending, another factor meriting full value for the plea.

[12]      That leaves 5 per cent for youth, remorse, rehabilitation prospects and no previous offending. This is manifestly inadequate. The Judge gave no credit for remorse, noting a lack of insight, and a failure to express significant remorse in either the pre-sentence report or psychological report. This is certainly true of the pre- sentence report where the writer considered Mr Goose showed little insight. The psychological report is more neutral, and notes Mr Goose does not understand all the consequences and needs assistance.

[13]      It is apparent the appellant recognises that his conduct was wrong. He says he had tried to stop, but still felt urges. He thereafter “hated” himself for what had happened. The tests administered by the psychologist assessed Mr Goose as being in the low risk category.

[14]      In my view the Judge was correct to observe there are no obvious signs of remorse but this very much reflects Mr Goose’s age, immaturity, and limited understanding. It is plain he needs assistance to work through these issues, and to develop techniques. He professes a predominant interest in relationships with females of the same age. Also, as regards remorse, the most tangible reflection is an early guilty plea which occurred here. It is also to be noted that prior to sentencing

Mr Goose made contact with the WellStop providers. However, a formal programme cannot be arranged until the sentencing outcomes are clear.

[15]      Overall, I consider 10 per cent the least one might expect for the various mitigating factors (excluding guilty plea). That increased recognition means any term of imprisonment will be a short-term sentence, thereby opening up the possibility of home detention. Home detention is the correct outcome here as it provides sufficient accountability and deterrence, and it maximises the chances of rehabilitation both as regards access to assistance, access to family support, and avoidance of the prison environment. I disagree with the District Court (which indicated it would not anyway have granted home detention) that the seriousness of the offending and Mr Goose’s attitude tell against such a sentence. I consider the seriousness is adequately caught by the starting point and there are no particular features that separate this offending out from others of its type. I have commented on remorse which I attribute as much to immaturity and inadequate understanding.

[16]      Mr Goose spent eight days in prison prior to being bailed by this Court pending sentencing. Although a short time, it will have had a significant impact and will have been a salutary experience. Weighing all the factors I cancel the sentence of imprisonment and substitute one of 10 months’ home detention. The conditions are:

(a)reside at the address on page 6 of the pre-sentence report;

(b)be subject to conditions 1 to 7 on that page although that is not to prevent him residing with his siblings; and

(c)these conditions are to apply also as post-sentence special conditions, alongside the standard conditions, for a period of 12 months.

Registration on the Child Sex Offenders Register

[17]      Under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016, a number of offences involving sexual conduct with children

under the age of 16 are identified as qualifying offences.3 Any offender who, as a consequence of conviction for one of these offences, is sentenced to a term of imprisonment of any length is automatically placed on the Register, generally for a 15 year period.4

[18]      Where the conviction results in a non-custodial sentence, the Court is required to determine whether the offender is to be placed on the Register. Registration in these circumstances will be for eight years. Section 9(1) is the provision that empowers the Court to place the offender on the Register. Section 9(2) provides that such an order may be made:

only if the Court is satisfied that the person poses a risk to the lives or sexual safety of 1 or more children, or of children generally.

[19]      Section 9(3) sets out a list of mandatory considerations when assessing the risk posed:

(3)For the purpose of assessing the risk posed by the person, the court must consider the following matters:

(a)the seriousness of the qualifying offence:

(b)the period of time that has elapsed since the offence was committed:

(c)the age of the person:

(d)the age of the person at the time of the offence:

(e)the age of any victim of the offence at the time of the offence:

(f)the difference in age between the victim and the person at the time of the offence:

(g)any written assessment of the risk posed by the person:

(h)any submission or evidence from any victim of the offence:

(i)any other submission or evidence relating to the risk posed by the person:

(j)any other matter that the court considers relevant.

3      Child Protection (Child Sex Offender Government Agency Registration) Act 2016, sch 2.

4      Section 7.

[20]      Section 9 has been considered in Johnston v Police5 and Fowler v R.6 In Johnston the offender was convicted on a single charge of  indecently assaulting a  14 year old girl. The sentence was four months’ home detention and 80 hours’ community work. Mr Johnston had placed his hand on the upper thigh of a girl unknown to him while they were travelling on a public bus.

[21]      Concerning s 9, Dobson J accepted there was a two-stage test where the existence of the s 9(2) risk was first to be determined, and then the discretion granted by s 9(1) was to be exercised. His Honour observed:7

… For the most part, sexual offending against children of any significance at all is likely to result in sentences of imprisonment. The consequences under the Act in all those cases are automatic. The consequences are not automatic where a sentence of imprisonment is not warranted, but the prospect of an order even for the least significant cases remains. That prospect requires a meaningful assessment of the factors before deciding that the concomitant requirement of the more significant offending, where prison sentences follow, ought to extend to the less significant offending where prison sentences have not been imposed.

[22]      Emphasis was then placed on s 3 of the Act which states the purposes of the legislation. Section 3 provides:

3        Purpose

The purpose of this Act is to establish a Child Sex Offender Register that will reduce sexual reoffending against child victims, and the risk posed by serious child sex offenders, by–

(a)providing government agencies with the information needed to monitor child sex offenders in the community, including after the completion of the sentence; and

(b)providing up-to-date information that assists the Police to more rapidly resolve cases of child sexual offending.

[23]      This reference to serious child sex offenders led Dobson J to conclude s 9(2) must be read as only applying to such offenders or otherwise the scope of the Act would exceed its intended purpose. Dobson J concluded:8

5      Johnston v Police [2017] NZHC 1718.

6      Fowler v R [2017] NZHC 1892.

7      Johnston, above n 5, at [26].

8      At [30]–[31].

The approach I adopt is that the requirement in s 9(2) that the person is one who poses a risk to the lives or sexual safety of a child or children may reflect a standalone assessment of the s 9(3) considerations. A consequence would be that anyone found to pose such a risk will, as a matter of definition, be a serious child sex offender in terms of the s 3 purpose.

This approach means that the level of risk identified for the purposes of s 9(2) must be assessed via s 9(3), but that risk must nonetheless be consistent with that created by a person whose offending is that of a serious child sex offender. If that minimum ranking of the nature of the risk is not applied, then the regime would apply beyond the scope Parliament intended, as reflected in its statutory purpose.

[24]      In the particular case Mr Johnston was held not to meet the s 9(2) risk threshold.

[25]      In Fowler, Thomas J endorsed the passage from Johnston just cited.9 Her Honour also placed emphasis on the use of the term serious child sex offender in s 3 of the Act, and concluded the risk required by s 9(2) must be “more than ‘real and genuine’”.10 Thomas J also considered the second step discretion analysis required:11

… an assessment of proportionality and a consideration of whether the risk identified in the first stage of the test would be mitigated by the offender being on the Register. Relevant considerations include balancing the risk to children, adverse impacts of registration, whether registration is proportionate to the risk, and preventing stigmatisation of low-risk offenders.

[26]      It being early days in the life of this legislation, it is appropriate to venture further comment, in this case taking a somewhat different approach. A potential effect, as I see it, of the decisions discussed may be to raise the threshold too high, especially if an elevated level of risk is then matched by the type of further analysis envisaged under the second step consideration of the discretion.

[27]      The idea of a threshold level of risk is not inconsistent with the statutory purposes. The mandatory considerations in s 9(3) are targeted at identifying the risk, and presumably premised on the proposition that not any risk, however negligible, will suffice. However, once the heightened threshold of risk is found to be present, I query

9      Fowler, above n 3, at [32]–[33].

10 At [30].

11 At [36].

the extent to which the discretionary step requires the sort of detailed analysis proposed in Fowler.

[28]      The concept of “serious child sex offender” appears only in the purpose provision and while that obviously informs interpretation, it is not definitional. Section 9 on its face does not contain a heightened test and it can at least be posited that one who has committed a qualifying offence, and who is assessed as posing an on-going risk to the sexual safety of children can fairly be described as a serious child sex offender.

[29]      In my view, when dealing with offenders sentenced to home detention and concerning whom the relevant risk has been identified as being present, the role of the discretion will be even more circumscribed. That is because there are many aspects of this type of offender that so closely parallel the offender concerning whom registration is mandatory – that is, every eligible offender who is sentenced to actual imprisonment for any length of term. A characteristic of the sentence of home detention is that the Court has already determined the offending, but for home detention being available, merits a term of imprisonment. Section 15A(1)(b) of the Sentencing Act 2002 makes this plain by providing home detention may be imposed:

only if … the court would otherwise sentence the offender to a short-term sentence of imprisonment.

[30]      When an offender subject to a sentence of home detention is assessed as presenting the necessary degree of on-going risk to child safety, and bearing in mind in accordance with Johnston that the assessed risk is the type of risk posed by a serious child sex offender, I suggest it will not be often that the discretion points away from registration. Registration would be consistent with a statutory scheme that makes registration mandatory for every eligible offender subject to the same short-term sentence that underlies all sentences of home detention. And it can be noted that often the difference between the two situations (home detention or imprisonment) is often something not directly relevant to the registration issue, such as the availability of a suitable address.

[31]      Against that background I turn to the particular case. Mr Goose was 17 when the offending started. It is a relevant observation to note that s 7(3) of the Act excludes offending that is committed by someone who has not attained the age of 18 years. This means Mr Goose would not have been liable to registration for the initial conduct which was the only skin on skin offending. This limiting of the eligibility age to 18 also suggests that the youth of the offender is seen by the legislature as potentially a consideration counting against registration.

[32]      The victims were aged 10 to 12 over the relevant offending period and so obviously vulnerable. As the District Court noted, the offending contained an element of grooming in that friendships with boys much younger than him were cultivated, and trust developed (both with the victims and their families). In terms of the seriousness of the offending, these factors and the actual conduct merited a three year starting point which is a significant figure and one which takes the offending well out of the minor range.12

[33]      The reports suggest Mr Goose lacks understanding but displays a willingness to obtain professional assistance. It is noted the psychologist assessed his risk as low. However, it must also be noted that despite being aware of the wrongness of his conduct, and attempting to desist, Mr Goose admits he felt urges he could not resist and so continued to offend.

[34]      The psychological  assessment  is  the  strongest  matter  pointing  towards Mr Goose not meeting the s 9(2) risk threshold. The report writer notes the assessment tools are not sourced in New Zealand, so care is needed, but they are the best indicators available. There is also the point made that that recidivism estimates are for the entire group carrying those characteristics, and not offender specific. None of this is to undervalue the resulting assessment; just to recognise as the report writer does that it has limits.

[35]      The two tests undertaken produced results of moderate risk, and average risk. Combining the two produced an assessment of “low”. How this occurs is not

12     Although the offending done when aged 17 is not eligibility offending, I do not regard it as otherwise irrelevant.

explained, but I of course defer to the report writer’s knowledge of the tools. Comprehensive treatment is recommended.

[36]      It is very much to be hoped that this professional assistance available and which Mr Goose is open to, will have the desired effect. His youth suggests his rehabilitative prospects are sound. However, weighing all the factors, and in particular the grooming aspect of the offending, the age of the victims, the seriousness of the offending, and the recognised need for comprehensive treatment, it is my view that the necessary level of risk required by s 9(2) exists. In terms of the discretion I see no reason to not direct registration. Mr Goose is at an age where he is more likely to be moving around, and registration will assist monitoring. I accordingly direct registration.

Name suppression

[37]      The District Court declined name suppression. On appeal three bases for challenge are advanced:

(a)the conclusion that there was no extreme hardship was incorrect;

(b)the Court failed to consider whether suppression was necessary to protect the identity of the victims; and

(c)the Court incorrectly considered the possibility of further victims emerging.

[38]      I address the latter two points first. Concerning the victims, the parents of the children opposed name suppression, and there is no evidence of a concern. This judgment has been able to be written in a manner which provides little or no clue to identity other than to  those who would  already be aware.  As for further victims,  Mr Griffiths submits and it is not disputed, that the police canvassed parents within the relevant grouping. I accordingly accept that there is no basis at this stage to conclude the possibility of further victims is a relevant concern.

[39]      The real issue is the statutory threshold of extreme hardship. It is submitted it can be found in the appellant’s youth and the impact it will have on rehabilitation. However, there is no evidence to suggest publication will impact on treatment or limit assistance being provided. The only concern then is the on-going stigma that attaches to this type of offending. I accept that is real but there is no basis to consider here that it will be out of the ordinary or disproportionate to what was serious offending. At 20 years of age, Mr Goose is young and publication will, for a period, be a burden but the facts fall well short of extreme hardship.

[40]      The appeal against the refusal to grant name suppression is dismissed. I will, however, defer the effect for one week to allow Mr Goose to adjust to the reality.

Conclusion

[41] The appeal against sentence is allowed. The sentence of 25 months’ imprisonment is quashed and a sentence of 10 months’ home detention substituted. The conditions are as set out at [16].

[42]      An order is made under s 9(1) of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 directing that Mr Goose be placed on the Register.

[43]      The appeal against name suppression is dismissed. The existing name suppression expires at noon on Friday, 13 October 2017.

[44]      Mr Goose is to remain on bail on existing conditions until the necessary steps are taken to enable the sentence of home detention to commence.

Simon France J