Knight v R

[2021] NZHC 2372

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000357

[2021] NZHC 2372

BETWEEN

LOGAN JAMES KNIGHT

Appellant

AND

THE QUEEN

Respondent

Hearing:	7 September 2021
Counsel:	BJ Meyer for Appellant HJ Bell for Respondent
Judgment:	10 September 2021

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 10 September 2021 at 1 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Auckland. BJ Meyer, Auckland.

KNIGHT v R [2021] NZHC 2372 [10 September 2021]

An appeal in relation to sexual offending

[1]    Judge B A Gibson imposed a two-year prison sentence on Logan Knight for two offences of sexual conduct with a young person under 16.1 Mr Knight appeals. An appeal in this context must be allowed if the appeal Court is satisfied there is an error in the sentence and a different one should be imposed.2 Or, in short, if the sentence is manifestly excessive.3

Background

[2]    The offending occurred 2018. The 14-year-old victim was babysitting, overnight, at a home occupied by Mr Knight and his girlfriend. The victim went to sleep on a couch in the lounge. Mr Knight went into the lounge and told her he used to be a stripper. The victim asked him to leave. Instead, Mr Knight violated her with his fingers and tongue. Police laid charges of sexual violation 5 March 2020. The Crown maintained those charges but on 22 April 2021 amended them to sexual conduct with a young person.4 Mr Knight pleaded guilty the same day.

Sentencing

[3]    Judge Gibson adopted a two-year, eight-month starting point. He deducted  10 percent for Mr Knight’s youth—he was 19 when he committed the offences. He also deducted 15 percent for the guilty pleas. The Judge declined to commute the 24-month sentence to home detention or allow leave for Mr Knight to seek that sentence should an address become available.

Argument and analysis

[4]    Mr Knight does not dispute the starting point; he focusses on deductions and home detention. On his behalf, Mr Meyer contends the youth discount should have been greater. On this topic, the Judge said:5

1      R v Knight [2021] NZDC 13011.

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

3      Tutakangahau v R [2014] NZCA 279.

4      Crimes Act 1961, s 134(1); maximum penalty, 10 years’ imprisonment.

5      R v Knight, above n 1, at [8].

You were 19 years of age and normally you could call on a discount for previous good character but you have appeared in the Youth Court, there was offending at your bail address that is alleged while this occurred and youth discounts are not automatic in any event. They are normally given where the offending involves a person being led into the offending by an older and more experienced offender or where there is something in relation to the character of the offender which the Court considers could be rewarded by way of a discount.

[5]    The reference to alleged offending at the bail address concerns charges of assault with intent to injure and assault in relation to Mr Knight’s grandfather and younger brother. Mr Meyer argues the Judge erred in placing weight on these charges because (a) they remain undetermined and (b) it “is a basic, fundamental principle of justice” a defendant is presumed innocent until found guilty.

[6]    Mr Meyer also argues the Judge erred in placing weight on Mr Knight’s Youth Court history: “this is a different jurisdiction” and Mr Knight “was not convicted in the Youth Court”. Mr Knight has notations for common assault and possession of an offensive weapon in that jurisdiction.

[7]    Mr Meyer is correct in relation to the first point for the reasons he gives. Responsibly, the Crown does not argue otherwise. But there is nothing in the second point. While a Youth Court notation does not constitute a conviction, it has long been the law Youth Court offending can be relevant to sentencing in the adult jurisdiction, as to which see R v Putt6 and R v Rongonui.7  It would be odd were the law otherwise.

[8]    What then of the 10 percent discount? As the Judge observed, a discount for youth is not automatic. It requires the presence of a feature or features referable to the defendant’s age at the time of the offence. The offending may constitute youthful indiscretion or an impulsive act.8 Or, a young person may be influenced by older offenders to have committed the offence.9 Sometimes, the discount reflects greater rehabilitative prospects,10 the potentially harsher effect of prison on an adolescent,11

6      R v Putt [2009] NZCA 38 at [18].

7      R v Rongonui [2009] NZCA 279, [2010] 1 NZLR 742 at [88].

8      Arahanga v R [2014] NZCA 379.

9      Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.

10     Churchward v R, above n 9.

11     R v Chankau [2007] NZCA 587.

or that the offender did not really appreciate the gravity of what they were doing, thereby diminishing his or her culpability.12

[9]    The offending could be seen as impulsive, but it can hardly be viewed as youthful indiscretion. It is much too serious. None of the other features is clearly present. Given all this, a 10 percent deduction is not unreasonable despite the error of approach in relation to the unproved charges.

[10]   Mr Knight was on electronically monitored bail from 14 December 2020 until 27 May 2021, a period of five and a half months. The Judge said this:13

Normally you would also be entitled to a discount for the months that you spent on electronically monitored bail but there were eight breaches of EM bail during that time and that is a matter that I do take into account. Again, that is a discount that I can give but I am not obliged to give it and the fact that serious charges have arisen while you were on electronically monitored bail means that I am not prepared to allow you a discount for that.

[11]   Mr Meyer contends the Judge should have afforded discount for the five-and- a-half-month period because seven of the eight breaches referred to by the Judge occurred while Mr Knight was on bail simpliciter, not electronically monitored bail.

[12]   A sentencing Court must consider the defendant’s time on electronically monitored bail and attendant circumstance.14 The Court of Appeal has repeatedly repudiated a mathematical approach to this issue. That said, sentencing Courts sometimes deduct one month of imprisonment for every two months on electronically monitored bail.

[13]   On 3 February 2021, Mr Knight appeared in the District Court after breaching electronically monitored bail—his bracelet deactivated for 30 minutes. Judge Glubb re-admitted Mr Knight on such bail “by the skin of his teeth”. And, on 27 May 2021, the violence charges were laid in relation to the grandfather and brother.

12     Overton v R [2011] NZCA 648.

13     R v Knight, above n 1, at [9].

14     Sentencing Act 2002, s 9(3A).

[14]   In Goodman v R, the Court of Appeal held it was open to the sentencing Judge to decline discount because the defendant faced serious drugs charges arising on electronically monitored bail.15 It is not clear this situation is entirely consistent with that when a defendant commits an established offence on bail; as to which see s 9(1)(c) of the Sentencing Act 2002. In that situation, it is beyond argument the defendant committed an offence on bail, for, he or she is being sentenced for it. In Goodman, it appears the alleged offending on bail remained to be established, in turn raising the compatibility of this reasoning with the presumption of innocence, a right affirmed by s 25(c) of the New Zealand Bill of Rights Act 1990. That said, perhaps controlled drugs were found at Mr Goodman’s home, in which case the sentencing Judge’s approach seems correct.

[15]   Whatever the position in Goodman, Mr Knight was not on electronically monitored bail for a long time. And as observed, he breached this form of bail once. Consequently, I am not persuaded of material error.

[16]   Mr Meyer also contends the Judge should have given Mr Knight a 25 percent discount for his pleas of guilty because (a) these were entered when the charges were amended and (b) Mr Knight is remorseful.

[17]   It is true Mr Knight pleaded guilty as soon as the charges were amended. However, I accept the respondent’s submission Mr Knight benefited appreciably from the plea arrangement. This principle from the Supreme Court’s decision in Hessell v R is engaged:16

Guilty pleas are often the result of understandings reached by accused and prosecutors on the charges and facts admitted. To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example, if the Crown agrees to accept a plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself. If the full credit for an early plea is then also given, the sentence may not properly reflect the offending.

15     Goodman v R [2016] NZCA 64 at [19]–[20].

16     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62].

[18]   The correctness of this analysis is confirmed by examination of the summary of facts in relation to each set of charges. The only material difference between the summaries is that following the plea arrangement, an allegation Mr Knight applied pressure to the victim’s throat (immediately before the violations) was abandoned.

[19]   Mr Knight told the pre-sentence report writer he was “completely sorry for what happened” and “happy to do any course that I can”. Beyond these remarks and an offer to participate in a restorative justice conference, there is nothing to ground the remorse argument. As the Judge observed, there could be “no issue of consent in this activity” and Mr Knight “took advantage of a young girl who was away from her home”.17 It follows 15 percent discount for the guilty pleas was readily available.

[20]   Finally, Mr Meyer contends the Judge should have granted Mr Knight permission to apply for home detention if an address became available. I disagree. The offending fell little short of the charges originally laid against Mr Knight. The victim self-harmed because of the offending, and was hospitalised following a suicide attempt. She continues to suffer depression. These effects underline the obvious: sexual offending is serious.

Result

[21]The appeal is dismissed.

……………………………..

Downs J

17 At [3].