J v The King

[2025] NZHC 1623

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 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-2024-406-000016

[2025] NZHC 1623

BETWEEN

J

Appellant

AND

THE KING

Respondent

Hearing:	25 February 2025; further submissions filed 23 May 2025
Counsel:	M E Goodwin for Appellant J W Cameron for Respondent
Judgment:	18 June 2025

JUDGMENT OF LA HOOD J

(Appeal against Sentence)

[1]                 J appeals against  a  sentence1  of  six  months’  community  detention  and  12 months’ supervision after pleading guilty to a charge of sexual connection with a dependent family member (his 17-year-old foster son).2

[2]                 J contends the District Court placed disproportionate weight on the sentencing purposes of denunciation and deterrence, and the sentence of community detention is disproportionately severe as it means he will lose his job. The Crown says community detention is the least restrictive sentence available given the seriousness of the offending.

1      R v [J] [2024] NZDC 31795.

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

J v R [2025] NZHC 1623 [18 June 2025]

The offending

[3]                 J and his partner became the foster parents and legal guardians of the victim when he was aged four. The offending occurred on Saturday 20 January 2024 when the victim was aged 17, one day before his 18th birthday.

[4]                 J had been drinking at a dinner party and then at a bar, while the victim was separately drinking at home. J returned home in the early hours of the morning, and he and the victim finished half a bottle of wine. The victim asked J to scratch his back, which was a common occurrence. J scratched the victim’s back for a minute or two.

[5]                 J then kissed the victim and told him to “suck his dick”. The victim said “no, you can suck mine”. J then performed oral sex on the victim. J’s partner entered the lounge a short while later and saw J leaning over the victim with the victim’s penis in his hand. J’s partner told him to leave.

[6]                 The summary of facts notes that J disputes parts of this narrative, including that he kissed the victim, the verbal exchange between them, and that he pulled the victim’s pants down. There was no attempt to resolve these disputes in the District Court.3 However, J accepts the essential aspects of the offending, namely that he performed oral sex on his 17-year-old foster son.

Sentencing decision

[7]                 The District Court Judge noted J accepted responsibility for what he had done.4 In terms of the principles of sentencing, the Judge emphasised the need to have regard to the overall gravity of the offending, impose a sentence consistent with sentencing levels for similar offending, and impose the least restrictive sentence appropriate in the circumstances.5

[8]                 In relation to the starting point, the Judge highlighted that the offending occurred only once and was of relatively short duration; that there was significant

3      Sentencing Act 2002, s 24.

4      R v [J], above n 1, at [20]

5 At [22].

alcohol intake by both parties but not to a point where criminal responsibility was avoided or lessened; the 35-year age difference between J and the victim; and the fundamental breach of trust.6 The Judge further observed the offending’s consequences on J, including the break-up of his relationship with  his  partner  (since repaired) and the loss of his employment.7 The Judge adopted a starting point of two years’ imprisonment.8

[9]                 The Judge considered there were no personal aggravating factors that warranted an uplift, and gave credit of 25 per cent for J’s guilty plea, 10 per cent for his previous good character, 10 per cent for remorse and five per cent for his background.9 This resulted in a 50 per cent reduction for personal mitigating factors, leaving an end sentence of 12 months’ imprisonment.10

[10]              The Judge then considered the type of sentence to be imposed. He said he was “acutely aware” that J’s job (at a business in Marlborough Sounds) would be a real problem with an electronically monitored sentence as a signal is not available there. However, the Judge said he found it difficult to not impose an electronically monitored sentence given the end sentence of 12 months’ imprisonment.11 The Judge recognised that the sentence imposed must take into account J’s personal situation and the wider circumstances.12

[11]              The Judge said the sentence of 12 months’ imprisonment should probably have been commuted to six months’ home detention, but instead imposed six months’ community detention. He considered this lenient and the lowest sentence he could impose.13 The Judge recognised that there would be some consequences geographically but noted that J had an address available in Blenheim.14

6      At [24]–[27].

7 At [28].

8 At [29].

9      At [30]–[33].

10 At [34].

11 At [35].

12 At [36].

13     At [36]–[40].

14 At [37].

[12]              He noted the community detention curfew would be variable so that J would be able to be employed.15 However, the Judge appears to have accepted that loss of J’s current position was inevitable. The Judge said he was not sure that community detention hours in the evening or daytime were preferable if J “end[ed] up managing somewhere here” or “working in the hospitality industry somewhere here” (meaning Blenheim).16 He noted that community detention “frees you every day to take on employment if that is normal business hours”, but if J were to “find employment that is not normal business hours”, he granted J leave to vary those hours.17

[13]In addition, the Judge imposed 12 months’ supervision18

Fresh evidence

[14]              Mr Goodwin, for J, has filed extensive evidence on appeal, including affidavits from J, his partner, his daughter and his daughter’s psychiatrist. Mr Goodwin says J’s affidavit provides further material information regarding J’s employment and personal circumstances that were not before the District Court. At the hearing of the appeal, I set a timetable for J to file further evidence addressing gaps in some of the information provided. The timetable was extended and the final submissions were filed on 23 May 2025. Unfortunately, they were not placed on the file or drawn to my attention until 9 June 2025.

[15]              The Crown adopts a neutral stance as to whether leave should be granted to adduce the fresh evidence on the basis that the evidence does not alter the overall sentencing analysis, as the information it contains was generally before the sentencing Judge.

[16]              I do not intend to address the well settled test for adducing fresh evidence on appeal.19 In the context of a sentence appeal, the overall interests of justice is likely to be the overriding consideration. It is also somewhat artificial to exclude the evidence when I am required to read it to determine whether the test for admission is

15     At [38]–[39].

16 At [38].

17 At [39].

18 At [41].

19     Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

met. On a sentence appeal, the primary issue is the weight to be given to the fresh evidence. I will therefore admit and consider all the fresh evidence, and give it appropriate weight in determination of the issues on appeal.

Parties’ positions

J

[17]              Mr Goodwin submits that the sentencing Judge placed disproportionate weight on the sentencing principles of denunciation and deterrence. He submits that the sentence of community detention is disproportionately severe as it will inevitably result in J’s employment being terminated, causing hardship to J and his partner and daughter. The work he will most likely be able to obtain is as a waiter in Blenheim at a severely reduced salary. That is the only work he was able to obtain before his current role, as potential employers for better paid roles ended the process when advised of his offending. This likely means he and his partner will need to sell one or both of their rental properties to make ends meet.

[18]              Mr Goodwin further notes that J was able to obtain his current position because his employers did not ask him whether he had any convictions when interviewing for the role, and he was under no obligation to tell them about his conviction (J had pleaded guilty and been convicted prior to applying for the role). This is despite J signing an employment contract stating that: he represented that he had not deliberately failed to disclose any matters that may have materially influenced the decision to employ him; and he had advised of anything that might impact on his suitability for the job including “potentially relevant criminal convictions”.

Crown

[19]              The Crown submits the Judge was correct to conclude that denunciation and deterrence were important in this case because of the gross breach of trust involved in the offending. The Judge was “acutely aware” of the issues an electronically-based sentence would have on J’s employment, and the sentence of community detention was a lenient alternative to home detention that would promote J’s prospects of employment. The Crown submits that J is in a comfortable financial position, and if

the financial consequences of his offending are that he may have to sell one or both of his rental properties, he will still be in a better position than many offenders that come before the Court. Moreover, on any assessment, the right thing for J to have done was to disclose his offending to his current employer.

Approach on appeal

[20]              In order to succeed, Mr Goodwin must show that there was an error in the sentence reached and that a different sentence should have been imposed.20 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”.21 The court will not generally intervene unless a sentence is manifestly excessive,22 and outside the range available to the sentencing judge.23 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.24

[21]              The “well-engrained”25 error principle recognises that reasonable minds can differ about where an appropriate sentence should sit within an available range.26 This 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.27

[22]              In R v Palmer the Court of Appeal confirmed that this approach is applicable to an appeal against the type of sentence imposed.28 There, the appeal was against a decision not to commute a sentence of imprisonment to home detention. 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

20     Criminal Procedure Act 2011, s 250(2).

21     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30] and [35].

22 At [35].

23 At [36].

24     At [30]–[36].

25     At [34]–[35].

26     Johnson v R [2023] NZHC 3748 at [6]; and M v R [2024] NZHC 3632 at [9].

27     Johnson v R, above n 26, at [6]; and M v R, above n 26, at [9].

28     Palmer v R [2016] NZCA 541.

directions.     Absent an error of principle, the appeal came down to whether imprisonment was clearly excessive.29 The Court said:30

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.

[23]              In R v D (CA253/2008), the Court 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.”31

[24]              Accordingly, the issues on this appeal are whether there has been a material error that means a different sentence should be imposed and, if not, whether there has been an error because the sentence imposed was manifestly excessive.

Decision

[25]              I am not persuaded that the Judge erred by placing disproportionate weight on the principles of denunciation and deterrence. He had appropriate regard to other purposes of sentencing, including the need to provide for J’s rehabilitation and reintegration into the community. The Judge expressly took into account the sentencing principle of imposing the least restrictive outcome appropriate in the circumstances. He explicitly imposed a lenient sentence so that J would have the best prospects of resuming employment. I can see no error in this approach.

[26]              J and his partner owned three properties prior to the offending, namely their family home and two rental properties that he intended his children would end up owning. After the offending, J resigned from his stable employment. He and his partner separated and could not afford to pay the mortgage on the family home. It was sold in July 2024. J’s daughter went flatting for a few months and J and his partner moved in with different friends.

29 At [24].

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

31 At [66].

[27]              J obtained his current employment in mid-October 2024. At that time, J and his partner got back together and bought a new (smaller) family home, which his partner and daughter moved into. J’s new job came with a rent-free three-bedroom house on site, where he has been living seven days per week. J’s partner remains in his existing stable employment.

[28]              I do not accept the submission that the Judge was unable to foresee the extent of the adverse consequences J would suffer, including his initial loss of employment, the sale of his larger family home, disruption to his family life, and the financial strain to cover expenses if he loses his current employment. Mr Goodwin submits that these matters, which are now fully before the Court on appeal, make community detention disproportionately severe and therefore manifestly excessive.

[29]              However, those matters occurred prior to sentencing in the District Court, except the loss of J’s current position. As noted above, the Judge was fully aware that community detention would likely cause the loss of his current employment. The Judge also expressly referred to the “massive disruption” to J’s family caused by his offending including the break down of his relationship (although he noted reconciliation seemed possible), and other consequences “including loss of your previous employment, et cetera.”

[30]              I accept the Crown’s submission that J and his partner appear to be in a comfortable financial position compared to most offenders that come before the Court. J’s partner’s employment does not appear to be in jeopardy. The value of J’s disclosed property portfolio is around $1,600,000 with lending of about half that figure. I do not consider that the financial strain to cover expenses that may result in the sale of one or more rental properties would make the sentence manifestly excessive.

[31]              I also share the Crown’s concern that J may have been, and may still be, obliged to disclose his conviction to his current employer based on the terms of his employment contract, and his obligations of mutual trust and confidence and good faith. The evidence is that when J disclosed his offending to three other potential employers, their offers of employment were withdrawn. I need not resolve this issue,

but it seems unlikely that J would have obtained his current employment had he disclosed his conviction.

[32]              I have not overlooked the potential impact the loss of the current family home would have on J’s daughter. She has psychological vulnerabilities and has suffered considerable disruption and stress due to J’s offending. However, on the available evidence, it appears highly unlikely that sale of the family home will be required for J and his partner to make ends meet, given that they own two rental properties.

[33]              While the likely effect of the community detention sentence on J and his family is unfortunate, the Judge correctly weighed this against the seriousness of J’s offending. The Judge, with awareness of the likely effect, considered that community detention was the most lenient sentence available given the gravity of the offending.

[34]              I consider there was no error in the Judge’s approach and the fresh evidence on appeal does not materially impact on that conclusion. It was open to the Judge to decide that the least restrictive available sentence was community detention having regard to the gravity of the offending and J’s personal circumstances. It follows that the sentence was not manifestly excessive.

[35]I therefore dismiss the appeal.

La Hood J

Solicitors:

Goodwin Law, Auckland for Appellant Crown Solicitor, Wellington for Respondent