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Haack v The King

Haack v The King

Case [2024] NZHC 112 8 February 2024

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

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2023-406-15

[2024] NZHC 112

BETWEEN
ROGER PERCIVAL HAACK

Applicant

AND

THE KING

Respondent

Hearing: 7 February 2024

Appearances:

M Zintel for Applicant

M A O’Donoghue for Respondent

Judgment:

8 February 2024

JUDGMENT OF COOKE J

(Appeal against conviction and sentencing)

[1] Mr Haack pleaded guilty to three charges of indecent assault,1 and was sentenced by Judge Tompkins on 31 October 2023 to five months’ community detention with 12 months’ intensive supervision.2 His Honour also registered Mr Haack on the Child Sex Offender Register.3 Mr Haack appeals against the Judge’s refusal to grant a discharge without conviction. If the appeal against conviction is unsuccessful, Mr Haack appeals against his registration on the Child Sex Offender Register.

1 Crimes Act 1961, ss 133(1)(a) and 132(3). Maximum penalties of 10 years’ and seven years’ imprisonment respectively.
2 R v Haack [2023] NZDC 23997.
3 At [26].

HAACK v R [2024] NZHC 112 [8 February 2024]

Background to the offending

[2] The victims of Mr Haack’s offending were three younger female members of his family.

[3] The first incident occurred in 1996, when the first complainant, J, was 11 years of age. J was lying on her stomach watching TV when Mr Haack approached her and asked if she wanted a back rub. Mr Haack lifted her shirt and started rubbing her back area. He put the tips of his fingers under J’s bra strap and continued rubbing, commenting on the fact J was wearing a bra. J swiftly turned around, red in the face, which caused Mr Haack to stop. Several weeks prior to this incident Mr Haack had exposed his penis in front of J. Mr Haack told Police that he doesn’t know why he exposed his penis to J, but it was not erect when he did. He stated that he doesn’t know why he massaged J, but he knew it was wrong and he stopped when he started getting an erect penis.

[4] The second incident occurred in 2008, when the second complainant, S, was 13 years of age. During a drive home from tending stock, Mr Haack reached across and gripped S’s upper thigh near the top of her shorts. This offending occurred in the context of a conversation about her toned legs. S moved across in her seat as far as she could to avoid Mr Haack and stop him from holding onto her thigh.

[5] The third incident occurred in 2020 against the third complainant, M, when she was 12 years of age. Mr Haack gave M $20 for her birthday. He leant down to M’s height and gave her a hug, placing his hand on M’s lower back and bottom area and began rubbing in a circular motion. Mr Haack then gave her a kiss on the lips.…

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 Haack v The King

Details

AGLC: Haack v The King [2024] NZHC 112
Case: [2024] NZHC 112
Decision Date: 8 February 2024

CaseChat Overview and Summary

In the case of Haack v The King, the applicant, Mr Haack, appealed against his conviction and sentencing for three charges of indecent assault against young family members. The District Court had sentenced him to five months of community detention with 12 months of intensive supervision and registered him on the Child Sex Offender Register. The High Court of New Zealand was tasked with reviewing the District Court's refusal to grant a discharge without conviction and the decision to register Mr Haack on the Child Sex Offender Register.

The legal issues before the High Court were whether the District Court erred in its assessment under section 107 of the Sentencing Act 2002 in denying a discharge without conviction, and if it was correct to order registration on the Child Sex Offender Register under section 9 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016. The High Court found that the District Court did not follow the established three-step approach in considering a discharge without conviction, though it ultimately agreed with the District Court’s conclusion that the consequences of conviction were not disproportionate to the seriousness of the offence. However, the High Court did find that the District Court did not properly engage with the statutory requirements for registration on the Child Sex Offender Register, as it failed to consider the mandatory factors under section 9(3) of the Act. Despite the District Court's conclusion that the offending indicated a propensity to offend, the High Court determined that Mr Haack did not pose a genuine risk to children generally, given the specific circumstances of his case. Consequently, the appeal against the registration decision was allowed, and Mr Haack’s name was ordered to be removed from the Register.

In conclusion, the High Court dismissed the appeal against the refusal to grant a discharge without conviction but allowed the appeal regarding the registration on the Child Sex Offender Register, directing that Mr Haack's name be removed from the Register.

Orders