Haack v The King
[2024] NZHC 112
•8 February 2024
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. M pulled away and called her friend’s mother to get picked up immediately.
[6] Mr Haack initially pleaded not guilty when the charges were first laid in 2021. Upon the Crown filing an amended charge list Mr Haack pleaded guilty.
District Court decision on sentence
[7] Judge Tompkins outlined the facts of the offending, and focused on the victim impact statements provided on behalf of all three victims. The Judge noted that
Mr Haack’s offending had evidently had a devastating effect on their lives, including “sometimes grippling hypervigilance during the victim’s childhoods and into adulthood.”4 The Judge discussed the two pre-sentence reports before the Court, which recommended both community detention and intensive supervision. The Judge also noted Mr Haack’s acknowledgement of his offending in a sworn affidavit annexing handwritten letters of apology, and that a discharge without conviction was sought. All three victims opposed that application.
[8] The Judge noted the consequences of conviction for Mr Haack, as being a blow to his self-esteem and confidence and a black mark on a long service career as a St John Ambulance officer. It was also asserted that a conviction would render his ability travel to Australia, to visit his children and grandchildren from a previous marriage, discretionary rather than automatic. However, the Judge considered that the consequences of conviction were not out of all proportion to the seriousness of the offending, and rather “amply justified by the nature, circumstances and effect of this offending”.5 The Judge said “the consequences as identified fall short of meeting the high statutory test for a discharge without conviction”.6
[9] The Judge imposed a sentence of five months’ community detention together with 12 months’ intensive supervision on the one special condition set out in the supplementary pre-sentence report. In respect of registration on the Child Sex Offender Register the Judge said:
[26] In my view registration is warranted. The reason is that the offending occurred in respect of three separate complainants with each incident of offending being separated by a number of years. That points at the least to a continuing propensity to offend in this way over an extended period of time so as to warrant registration. Order accordingly.
Submissions
[10] The appellant submits that the Judge erred in refusing to grant Mr Haack a discharge without conviction, and registering him on the Child Sex Offenders Register. A number of appeal grounds are raised, including that the Judge failed to consider the
4 At [5].
5 At [19].
6 At [21].
three-step approach to a discharge without conviction, including an analysis of the gravity of the offending. Further, the Judge failed to refer to the comparable cases cited by counsel where a discharge without conviction was granted. The appellant submits that the Judge made a number of erroneous factual findings as to Mr Haack’s “sexual intent”, the circumstances surrounding the victims’ disclosure of the offending to family, and failed to consider the affidavit evidence filed in support of Mr Haack’s application.
[11] In respect of registration, the appellant submits that the Judge’s decision to register Mr Haack was wrong and failed to consider the matters in s 9 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act).
Legal principles on appeal
[12] An appeal against the refusal to grant a discharge without conviction is properly categorised as an appeal against conviction and sentence.7 An appeal against conviction must be allowed if a miscarriage of justice has occurred for any reason.8 As the Court of Appeal stated in Jackson v R with regard to s 232(2) of the Criminal Procedure Act 2011: 9
[12] … the principled basis for determining an appeal against a discharge without conviction is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering a conviction. That is because a trial includes a proceeding in which the appellant has pleaded guilty. Alternatively, it can be said that a miscarriage of justice has occurred “for any reason” if the Judge has erred in applying the principles for discharging an offender without conviction found in s 107 of the Sentencing Act.
[13] Under s 106(1) of the Sentencing Act 2002, if a person pleads guilty to an offence, the court may, instead of imposing a sentence, direct that the offender be discharged. Under s 107, the court must not do so unless it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
7 Jackson v R [2016] NZCA 627 at [8]–[9].
8 Criminal Procedure Act 2011, s 232(2)(c).
9 Jackson v R, above n 7.
[14] In Z (CA447/2012) v R, this Court set out a three-stage test to be applied by the courts when considering applications for a discharge without conviction:10
(a)consider the gravity of the offence, taking into account the aggravating and mitigating factors of the offending and offender;
(b)consider the direct and indirect consequences of a conviction; and
(c)consider whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[15] If the court determines that the consequences of a conviction are all out of proportion, the court must then consider whether it should exercise its residual discretion under s 106 to grant a discharge.11
[16] Section 107 does not involve a judicial discretion. Whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence is a matter of fact subject to judicial assessment, thus, the appeal proceeds by way of rehearing.12 Only if the court is satisfied the s 107 threshold has been met, may the court proceed to consider the exercise of discretion to discharge without conviction under s 106.13
Did the District Court err its assessment under s 107?
[17] The appellant submits that the Judge did not follow the three step approach to applying s 107 outlined above. I accept that he did not do so. Whilst it can be argued that he implicitly addressed the requirements it is usually important for the established tests to be applied in express terms. If the Court does not do so there is a risk that the decision would appear to be based on an overall assessment of what the Judge thinks
10 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [8] and [27], applied in Basnyat v
Police [2018] NZCA 486, [2019] 2 NZLR 344 at [15].
11 Although it would be rare for a court to refuse to grant a discharge in such circumstances as the Court made clear in Z (CA447/12) v R, above n 10, at [27]. See also Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].
12 Doyle v R [2022] NZCA 307 at [15]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
13 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11]; Doyle v R, above n 12, at [15].
is fair, rather than the application of the required principles. Here, for example, it can be argued that the Judge reached his decision because of the very persuasive victim impact statements he referred to rather than because of the application of the test for a discharge.
[18] In those circumstances it is appropriate for this Court to address the requirements for a discharge without conviction.
[19] In terms of the gravity of the offending the Judge outlined the facts of the offending and referred to the following aggravating features:
(a)the long lasting impact and significant harm caused to the three victims;
(b)that “sexual intent” was involved to the extent that Mr Haack knew what he did was indecent, said to be accepted by Mr Haack through his guilty plea to the charges;14
(c)the offending was sequential, occurring on three individual occasions and involving a pattern of offending; and
(d)that the victims were three young female members (and children) of Mr Haack’s family.
[20] I accept the appellant’s submission that the Judge also did not refer expressly to mitigating factors of the offending. The appellant identifies the following factors:
(a)the touching was “brief” and not repeated in respect of each victim;
(b)the touching was over clothing save for a massage under a bra strap; and
(c)the touching was “lower level” being to a backside, leg/upper thigh and back.
14 I do not agree that the Judge erred in making this finding. The summary of fact included references to a sexual intent.
[21] I also accept that the offending in question is less serious than other child sexual offending. But that does not mean that it was not serious. That is because of the impact on the young victims which the Judge described in his decision. There are also some mitigating factors, including Mr Haack’s attendance of counselling and reparation payments. But the offending is still moderately serious, and involved a significant impact on the victims.
[22] In terms of the direct and indirect consequences of the conviction, these are identified as:
(a)Mr Haack’s inability to automatically travel to Australia to see his family;
(b)a severe blow to his confidence and self-esteem, and a permanent black mark on his unblemished record; and
(c)prejudice to future employment opportunities.
[23] The final step is to assess whether these consequences are out of proportion. In my view these consequences are the normal consequences of offending of this kind. I accept that the normal consequences of a conviction are relevant.15 But there is no specific additional prejudice arising for the appellant — for example lost employment, or a particular problem arising from his inability to travel, although I accept it may be more difficult for him to travel to Australia to see family. But I do not accept that these consequences are disproportionate. I accordingly agree with the Judges conclusions in this respect.16 The Judge did not err in declining a discharge without conviction.
[24] For these reasons I dismiss the appeal against the failure to grant a discharge without conviction.
15 DC (CA47/2013) v R [2013] NZCA 255 at [44].
16 At [18]–[20].
Did the District Court err in registering Mr Haack on the Child Sex Offender Register?
[25] The appellant submits that the Judge was wrong to register Mr Haack on the Child Sex Offender Register having failed to consider the matters in s 9 of the Child Protection (Child Sex Offender Government Agency Registration) Act. A registration order made at the time of sentencing is a sentence for the purpose of appeals.17
[26] The Child Sex Offender Register was established to reduce sexual reoffending against child victims and the risk posed by serious child sex offenders by:18
(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.
[27] If a Court imposes on a person a non-custodial sentence in respect of a conviction for a qualifying offence, the Court may order that the person be placed on the Register and the person must then comply with the reporting obligations of the Act.19 Under s 9(2), a court may make a registration order 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.”20 Section 9(3) of the Act provides:
(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:
17 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 9(4).
18 Section 3.
19 See ss 16–23.
20 Section 9(2).
(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.
[28] In D (SC31/2019) a majority of the Supreme Court held that the judicial exercise of s 9 involves two stages.21 The court must first be satisfied that the offender poses a real or genuine risk to the lives or sexual safety of a child or children generally, considering the matters in s 9(3).22 If this threshold has been met, the second stage is whether the discretion to make a registration order under s 9(1) should be exercised having regard to the level of risk posed by the offender. The court must be satisfied this risk is of sufficient gravity to justify the making of a registration order with the consequent impact on the rights of the offender.23
[29] I agree that the District Court Judge did not engage with the two step approach, or discuss the mandatory considerations set out in s 9(3). The decision to order Mr Haack’s registration was made on the basis that the offending against three separate complainants, separated by a number of years, pointed to a continuing propensity to offend in this way over an extended period of time. Implicit in this conclusion is the Judge’s satisfaction that Mr Haack posed a risk to the lives or the sexual safety of children.
[30] Given that the Judge did not engage in the analysis contemplated before making the registration decision it is appropriate to consider the considerations referred to in s 9(3) to assess the risk posed by Mr Haack.
21 D (SC31/2019) v Police [2021] NZSC 2, at [104] per Winkelmann CJ and O'Regan J and [260] per Glazebrook J.
22 At [104]–[105].
23 At [108].
(a)Seriousness of the qualifying offences: The three charges are Class 2 qualifying offences under the Act. The offending was of moderate seriousness involving a breach of trust by Mr Haack and an abuse of his position as an elder to three young females in his family. The assaults were not prolonged or repeated in respect of each victim. But the impact on the victims has been significant.
(b)The period of time since the offence was committed: The offending occurred on three occasions, in 1996, 2008 and 2020.
(c)The age of the appellant: Mr Haack is currently 70 years of age, and at the time of his offending he would have been around 43, 55 and 67 respectively.
(d)The age of victims: At the time of the offending, J was 11 years old, and S was 13 years old and M was 12 years old.
(e)The difference in age between the victims and the appellant: Mr Haack is 32 years older than J, 42 years older than S, and 55 years older than
M. There is a significant age difference between the appellant and each of the victims.
(f)Written assessment of risk posed by the appellant: Two pre-sentence reports were prepared for Mr Haack. The 10 August 2023 report notes:
(i)Mr Haack reports there are currently no children in his life and he does not expect any in the foreseeable future;
(ii)Mr Haack has undertaken counselling over the eight months preceding the Report, partially to address anxiety over the convictions but primarily to address his offending behaviour;
(iii)Mr Haack is assessed as being at low likelihood of reoffending; and
(iv)the reactions of Mr Haack’s victims suggest he has the potential to cause medium psychological harm should he reoffend.
In addition, a private psychological report dated 11 May 2023 reached similar conclusions.
(g)Any submission or evidence from victims: The victim impact statements of the three victims of the offending were summarised by the District Court Judge in the following way:24
[5] At today’s hearing I have heard moving victim impact statements on behalf of all three victims. Without needing to traverse those in detail, the common themes that emerge is in each case the devastating effect that this offending by [an elder] figure has had on the lives of the three victims. That effect has included sometimes grippling hypervigilance during the victim’s childhoods and into adulthood. A sense of abandonment and isolation within the family, particularly given the devastating circumstance that when the abuse was disclosed the victim’s mother and grandmother sided with the defendant and downplayed, denied or reacted aggressively to each of the victims who had had the courage to disclose what had occurred.
[6] Ongoing effects include repetitive and prolonged harmful self-medication by alcohol and other substances, self-harm attempts, much reduced or diminished life prospects and job prospects, the inability to participate in what one of the victims described quite appropriately as the simple things of childhood including sports, friendships and the like, and persistent difficulties with relationships.
Assessment
[31] The fact that Mr Haack’s offending is comparatively less serious than other child sexual offending is not particularly significant in my view. As the District Court Judge held, the offending can still have very serious consequences for the victims. If there is a risk to other children that Mr Haack may repeat this kind of offending then registration is warranted.
[32] It is not suggested that Mr Haack now poses a risk to any particular child. The question is whether he does so for children more generally. There are three factors
24 R v Haack, above n 2.
that suggest to me that Mr Haack is not a real or genuine risk to the sexual safety of children generally:
(a)First, all Mr Haack’s victims have been family members. There is no evidence that he has offended against other children. As far as his own family is concerned there is no real suggestion that registration will address any risk he now has to the extent that it now still exists.
(b)The second factor is Mr Haack’s age, which makes it less likely that he will form relationships that will expose him to other children. Whilst that possibility cannot be eliminated it is less likely that he would do so at this age.
(c)The third factor is that Mr Haack has been assessed as being at a low likelihood of reoffending in the reports referred to above.
[33] Against that there are the factors referred to by the District Court Judge. The first is that the offending was against three separate victims. The second is that the offending occurred over a number of years. This may suggest a propensity to engage in such offending.
[34] I nevertheless accept that it has not been established that Mr Haack poses a risk to the sexual safety of children generally in the circumstances. Neither is there any particular children to which he poses a risk. That is also the assessment of the report writers. On the contrary, I consider it is most unlikely that he will reoffend now that his behaviour has been identified and he has been prosecuted.
[35] Even if the real or genuine threshold is met, whether registration should be required depends on whether the imposition of a registration order is a proportionate response to the risk identified, having regard to the intrusion on the appellant's rights that this will involve.25 I do not accept that the level of any risk justifies the impacts that registration would have. It is to be remembered that registration inevitably
25 D (SC31/2019) v Police, above n 21, At [129]. The Supreme Court observed that s 9 of the Act should be interpreted consistently with s 6 of the Bill of Rights Act 1990 to the extent possible: at [101].
involves significant impacts for the person entered on the register. To have a name entered on a Child Sex Offender Register involves a level of significant state oversight over the liberty of a person. It should not be made automatically, or routinely, if imprisonment is not imposed. The legislative provisions make that clear. The important thresholds for making those orders should be addressed. The fact that someone has offended against children does not mean that they should be entered on the Register. It is a significant decision that can only be made if the high thresholds are met. To be formally registered as a child sex offender, and known by state agencies by that character, involves a significant adverse matter for anybody so registered. In this case I also do not consider that registration relevantly addresses any risk that Mr Haack may be said to have given the nature of his earlier offending. For that reason I do not consider that registration was required.
Conclusion
[36] The appeal against the District Court’s refusal to grant a discharge without conviction is dismissed.
[37] The appeal against the decision to register Mr Haack on the Child Sex Offender Register is allowed and an order is made directing that the appellant’s name be removed from the Register.
Cooke J
Solicitors:
O’Donoghue Webber, Nelson for Respondent
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