H v The King

[2024] NZHC 1562

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

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

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2024-485-000039

[2024] NZHC 1562

BETWEEN

H

Appellant

AND

THE KING

Respondent

Hearing:

13 June 2024

Counsel:

K F Preston for Appellant

H M L Farquhar for Respondent

Judgment:

14 June 2024

JUDGMENT OF LA HOOD J

(Appeal against Sentence)

A refusal to commute a term of imprisonment to home detention

[1]                 Mr H, aged 38, appeals a decision to sentence him to imprisonment rather than home detention.1 He was sentenced to one year and eight months’ imprisonment on three charges of sexual connection with a dependent family member aged under 18.2

1      R v H [2024] NZDC 9183.

2      Crimes Act 1961, s 131(1). The maximum penalty is seven years’ imprisonment.

H v R [2024] NZHC 1562 [14 June 2024]

[2]                 The offending involved Mr H having sexual intercourse with both his stepdaughters. He had been married to their mother for 10 years and was a father figure to them. Mr H started sexually touching his eldest stepdaughter when she was aged 15 and had sexual intercourse with her on at least three or four occasions between the ages of 16 and 17, and once when she was aged 18. On the day of the final act of intercourse with his eldest stepdaughter, Mr H also had sexual intercourse with his youngest stepdaughter, aged 16, with the eldest stepdaughter present in the room.

[3]                 The sole issue on appeal is whether the sentence of imprisonment should have been converted to home detention. Mr H argues that the Judge placed excessive weight on community protection, denunciation and deterrence, and gave insufficient consideration to whether the purposes and principles of sentencing could be met by home detention.

[4]                 For the reasons that follow, I am not persuaded that the Judge erred in principle, or that a sentence of imprisonment was manifestly excessive. The Judge gave proper consideration to the relevant purposes and principles of sentencing, and was entitled to form the view that the aggravating features of the offending meant that the sentencing purposes of denunciation, deterrence, accountability and community protection required a term of imprisonment.

Background

[5]                 Until July 2022, Mr H was in a romantic relationship with the mother of the two complainants. The relationship spanned 12 years and they were married for 10 of them. Mr H’s two stepdaughters were approximately four and seven years old when his relationship with their mother started and he was like a father to them.

[6]                 Between 4 September 2018 and June 2019, when Mr H’s eldest stepdaughter was aged 15, he touched her in a sexual manner and digitally penetrated her vagina on at least two occasions. Between 4 September 2019 and 3 September 2020, he formed a quasi-relationship with his eldest stepdaughter whilst she was aged 16 and 17. He sent her sexualised messages, requested that she send him nude images and they viewed pornography together. During this time, Mr H had sexual intercourse with her three or four times.

[7]                 Mr H had sexual intercourse with his eldest stepdaughter for the last time on 28 May 2022 when she was aged 18. On the same day, he had sexual intercourse with his younger stepdaughter, who was then aged 16, while the first complainant was present.

[8]Mr H has no criminal or bail history prior to this offending.

The District Court decision

[9]                 On 17 November 2023, Judge K Elkin gave Mr H a sentence indication of two years and four months’ imprisonment.3 She adopted a starting point of three years and three months’ imprisonment and noted that the aggravating features of the offending included premeditation, age disparity, the age of the first victim when the offending began (15), the scale of the offending and the impact on the victims.

[10]              On 24 November 2023, Mr H accepted the sentence indication and pleaded guilty to all three charges.

[11]              On 24 April 2024, the Judge sentenced Mr H.4 She adopted the three year and three-month starting point previously indicated.5 The Judge gave Mr H a 25 per cent credit for his guilty plea,6 and a further credit of five per cent for previous good character.7

[12]              The Judge considered the pre-sentence report, which stated that Mr H could not recall how the offending started because of his high alcohol consumption,8 he was unable to provide any reason or insight into the offending,9 he has a moderate to high likelihood of reoffending due to the length of the offending and his lack of insight,10 and imprisonment was recommended. The Judge applied a 10 per cent reduction to take account of Mr H’s background and rehabilitation efforts.11 She also gave a credit

3      R v H DC Wellington CRI-2023-035-483, 17 November 2023 (sentence indication).

4      R v H, above n 1.

5 At [6].

6 At [7].

7 At [12].

8 At [8].

9 At [9].

10 At [9].

11 At [13].

of three months to recognise the total period of around 20 months Mr H was on curfew.12 This resulted in an end sentence of one year and eight months’ imprisonment.13

[13]              In deciding not to convert the sentence of home detention, the Judge noted she needed to balance the purposes and principles of sentencing to impose the least restrictive sentence appropriate in the circumstances.14 She considered that denunciation was required due to the considerable harm done to the victims, the repeated and calculated nature of the offending, and the gross violation of trust. She noted the submission that the risk of reoffending should be assessed by reference to the psychological report prepared for the Family Court to address Mr H’s access to his seven-year-old biological daughter, which put the risk at below average. However, the Judge noted that “even in [the] psychologist’s report, there is concern about your insight and your attempts to justify your offending”.15

[14]              The Judge said that she had given considerable thought to the issue of home detention and had looked at relevant cases.16 She concluded that home detention has been imposed for this type of offending in less serious cases and offending at this level has led to imprisonment in other cases even when home detention is available. The Judge expressly considered Mr H’s rehabilitative and reintegrative needs but considered they could be met through programmes in prison or in the community (and imposed special conditions to apply on his release from prison requiring psychological and alcohol and drug assessment and treatment).17

[15]                The Judge concluded that given the aggravating factors of the offending, denunciation, deterrence and public safety were particularly important. This meant a custodial sentence was necessary to adequately meet the principles and purposes of sentencing.18

12 At [15].

13 At [15].

14 At [16].

15 At [15].

16 At [16].

17     At [16] and [18].

18 At [17].

Submissions

For the appellant

[16]              Mr Preston, for the appellant, submits that the Judge erred by imposing a sentence of imprisonment when the least restrictive sentence available was one of home detention because:

(a)The Judge placed too much weight on the deterrence and denunciation principles of sentencing and did not properly balance those considerations with assisting Mr H’s rehabilitation and reintegration.

(b)Although sexual offending is serious and sexual offending against children generally results in sentences of imprisonment, there is no presumption that any type of sentence is more or less appropriate than others for this class of offending.

(c)The weight the Judge gave to community protection was in conflict with the psychologist’s assessment that H poses a below average risk of further sexual offending.

(d)The Judge did not take into account the impact imprisonment would have on Mr H’s alcohol abstinence and on his supervised visits with his daughter (currently subject to proceedings in the Family Court).

(e)The Judge decided not to commute the sentence to home detention because of her conclusion that the offending was too serious and did not undertake a significant assessment as to why the purposes and principles of sentencing would not be met by a sentence of home detention.

(f)A sentence of home detention could meet the purposes of deterrence in these circumstances as it is a serious punishment and would best serve Mr H’s rehabilitative needs.

For the respondent

[17]              Ms Farquhar, for the respondent, submits that the appeal should be dismissed. The principle of deterrence was a significant factor in the Judge’s decision, but the Judge appropriately considered the full range of purposes and principles of sentencing. It was open to the Judge to emphasise the need for deterrence, denunciation, community protection and accountability for the harm done to the complainants, and no principle was given excessive weight. Accordingly, there has been no error of principle or a manifestly excessive outcome.

Approach to appeal

[18]              It is convenient to repeat what I have previously said in another appeal against a decision to impose imprisonment rather than home detention:19

[3]        In Tutakangahau v R the Court of Appeal confirmed the long-standing approach to sentence appeals was not altered by s 250 of the Criminal Procedure Act 2011. The appellant must show a material error was made and that a different sentence ought to be imposed.20 In most sentence appeals brought by a defendant, the appeal court will not intervene unless the sentence is manifestly excessive. Whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.21 The Court said sentencing “is not a science” and an “appellate court does not start afresh nor simply substitute its own opinion for that of the original sentencer.”22

[4]        In R v Palmer the Court of Appeal confirmed that this approach is applicable to an appeal against a decision not to commute a sentence of imprisonment to home detention.23 The Court noted that such a decision calls for a case by case exercise of judgment against the principles and purposes of sentencing, and that these can sometimes point in opposing directions. Absent an error of principle, the appeal came down to whether imprisonment was clearly excessive.24 The Court said:25

As the Court explained in R v D (CA253/2008), it can be very difficult in a marginal case to articulate reasons for preferring one approach to another. In consequence, the margin of appreciation extended to sentencing judges is usually significant.

19     R v Johnson [2023] NZHC 3748.

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

21     At [30]–[36].

22     At [30] and [35].

23     Palmer v R [2016] NZCA 541.

24 At [24].

25     At [19], citing R v D (CA253/2008) [2008] NZCA 254 at [66].

[5]        The Court of Appeal in R v D (CA253/2008) also said that in borderline cases “the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight.”26

[6]        The “well-engrained”27 error principle articulated in these decisions recognises that reasonable minds can differ about where an appropriate sentence should sit within an available range. It reflects underlying purposes important to the effective administration of justice, including maintaining public confidence in the sentencing process and ensuring finality and predictability for defendants and victims.

[24] Accordingly, the issues on appeal are whether there has been an error of principle that means home detention should be imposed and, if not, whether there has been an error because a sentence of imprisonment was manifestly excessive.

Assessment of arguments and decision

[19]             The first issue is whether there has been an error of principle. The Court of Appeal’s decision in Fairbrother v R provides some guidance on this issue:28

[29]      Sentences of imprisonment have been quashed and home detention substituted for two errors of law. One is where the sentencing judge has assumed that the offence category lies beyond a sentence of home detention. The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence.

[30]      That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

(footnotes omitted)

[20]             Judge Elkin did not make either of the errors of law identified in Fairbrother. First, she did not assume that sexual offending against children falls into a category of offending that “lies beyond the reach of home detention”. The Judge carefully considered authorities for this type of offending, noted that the aggravating features of this case were at a level that has resulted in imprisonment rather than home detention in other cases, and correctly considered this relevant to the principle of consistency in

26 At [66].

27     Tutakangahau v R, above n 20, at [34]–[35].

28     Fairbrother v R [2013] NZCA 340.

sentencing.29 Although the Judge omitted to cite the sentencing authorities she considered, I accept the respondent’s submission that such an omission is not, in itself, an appealable error.

[21]             Second, the Judge did not give complete priority to deterrence without regard to the countervailing purposes of sentencing. She expressly considered the requirement to impose the least restrictive sentence and to provide for Mr H’s rehabilitation,30 then made a considered and principled choice between the two forms of sentence having regard to all relevant factors.

[22]             I accept the respondent’s submission that the Judge appropriately considered the applicable purposes and principles of sentencing and explained why they would not be met by a sentence of home detention. The Judge gave express consideration to Mr H’s rehabilitative needs and found that they could be addressed by programmes in prison, or in the community in accordance with the special release conditions imposed.31

[23]             The Judge was not required to recite every possible matter that could be weighed in Mr H’s favour. For example, it was not an error of principle to fail to expressly refer to the impact of imprisonment on Mr H’s contact with his daughter (which the psychological report recommended should remain supervised until he completes therapy to address his sexual offending). The Judge was clearly aware of the issue (having read the psychological report), and it can be inferred she decided that it was not a weighty factor compared to the other matters she expressly noted.

[24]             I also consider there was no error in principle in emphasising the need for community protection despite the sexual offending risk assessment in the psychological report. The Judge was entitled to consider the report as a whole, including that it raised concerns about Mr H’s insight and that it contained justifications and rationalisations for the offending. I also note that the report records that Mr H continued to deny the offending against his younger stepdaughter.

29     R v H, above n 1, at [16].

30 At [16].

31     At [16]–[17].

[25]             In any event, the requirement in s 16(1) of the Sentencing Act to “have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community” requires a broader assessment of community safety than the specific risk posed by an individual offender. It extends to the “more generally protective objects of deterrence and denunciation”.32

[26]             I am therefore unconvinced that there was any error of principle in the Judge’s reasoning.

[27]             The final issue is whether, despite there being no error of principle in the Judge’s reasoning, the overall sentence was in error because it was manifestly excessive.

[28]             Counsel provided the Judge with the following cases relating to conversion of a sentence of imprisonment to home detention:

(a)McCarthy v R,33 where the High Court dismissed an appeal against the District Court’s refusal to commute a short sentence of imprisonment to one of home detention. The appellant was a 47-year-old male who was an approved caregiver of the 16-year-old victim. Two to three months after the victim moved in with the appellant, he had sexual intercourse with her. Over the following weeks they had sexual intercourse on five or six occasions. The appellant pleaded guilty to one charge of sexual connection with a dependent family member under

18. The aggravating features were the vulnerability of the victim and pre-meditation given the repeated acts of intercourse. Moore J was unconvinced on appeal that the sentencing Judge gave excessive weight to deterrence or insufficient weight to other countervailing sentencing purposes in declining to convert the sentence of imprisonment to one of home detention.

32     Mathew Downs (ed) Adams on Criminal Law — Sentencing (looseleaf ed, Thomson Reuters) at [SA16.02].

33     McCarthy v R [2017] NZHC 342.

(b)R v Thomson,34 where the District Court imposed a starting point of two years and six months’ imprisonment for two charges of doing an indecent act upon a dependent family member, two charges of unlawful sexual connection with a dependent family member and one charge of possession of objectionable material. The victim had been placed in the custody of the defendant after a period of being in State care. In declining to convert the end sentence to home detention, the sentencing Judge emphasised the need for deterrence, accountability for the harm done to the victim and to promote a sense of responsibility for, and an acknowledgment of, that harm.

[29]             The respondent also relies on the decision of Fisher v Police for the proposition that although there is no statutory presumption in favour of imprisonment for sexual offending against children, the courts have said that imprisonment is “the likely sentencing outcome”.35 In that case it was said:

[15]As the Court of Appeal said in [Kennedy] v R:

… All sentences that are potentially in the range should be considered on their merits, although it will be recognised that the likely sentencing outcome for sexual offending against children is imprisonment.

[16]      That of course does not amount to a presumption in favour of imprisonment for all child sex offenders. Rather, it emphasises the obvious point that the sentencing principles of denunciation and deterrence in the context of sexual activity against very vulnerable victims will generally mean a lesser sentence is unlikely to be justified on a principled basis.

[17]      That said, the sentencing Court must still adopt the least restrictive outcome consistent with the relevant sentencing principles and purposes. ...

[30]             Having regard to these authorities and the aggravating features of the offending, it was clearly open to the Judge to conclude that the purposes of sentencing required a term of imprisonment. Mr H grossly violated the trust of the complainants who had grown up with him in a paternal role. The offending was pre-meditated and persistent, starting when the first victim was 15, taking place over several years, and

34     R v Thomson DC Nelson CRI-2009-042-000435, 24 June 2009.

35     Fisher v New Zealand Police [2014] NZHC 2189 at [15]–[17], citing Kennedy v R [2011] NZCA 569.

escalating at the end of that period by offending against the second victim when she was aged 16. Mr H caused the victims significant harm and lacks insight into his offending and the harm he has caused. It follows that imprisonment was not a manifestly excessive outcome.

Conclusion

[31]The appeal is dismissed.

La Hood J

Solicitors:

Crown Solicitor, Wellington for Respondent