McCarthy v The Queen
[2017] NZHC 342
•6 March 2017
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2016-416-000042 [2017] NZHC 342
BETWEEN CHRISTOPHER BRIAN MCCARTHY
Appellant
AND
THE QUEEN Respondent
Hearing: 2 February 2017 Appearances:
Matthew Phelps for the Appellant
Cameron Stuart for the RespondentJudgment:
6 March 2017
JUDGMENT OF MOORE J [Appeal against sentence]
This judgment was delivered by me on 6 March 2017 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
MCCARTHY v THE QUEEN [2017] NZHC 342 [6 March 2017]
Introduction
[1] Mr McCarthy was sentenced to 19 and a half months’ imprisonment after pleading guilty to one charge of having sexual connection with a dependent family member under the age of 18 years.1
[2] He appeals against the sentence. The central issue on appeal is whether the Judge should have substituted the sentence of imprisonment for one of home detention.
Factual background
[3] A summary of facts was prepared for sentencing purposes after Mr McCarthy pleaded guilty to the charge. It provides the following narrative. Mr McCarthy (who was 47 at the time) and his wife were approved by Turanga Social Services to be the caregiver of the victim, a 16 year old female. Soon after she moved in, Mr McCarthy and the victim began spending time alone together where they would hug and kiss each other.
[4] Two to three months after she had moved in, the victim and Mr McCarthy were home alone together. The victim was folding clothes in a spare room of the house when Mr McCarthy joined her. The victim says they lay down on the bed together, removed their clothing and had consensual sexual intercourse. She describes this as the first occasion of intercourse.
[5] Over the following weeks, on occasions when they were alone, Mr McCarthy and the victim would have consensual sexual intercourse. The victim suggests there were five or six occasions when intercourse took place.
[6] In explanation, Mr McCarthy said he had engaged in consensual sex with the victim on one occasion and only because she had threatened to allege rape against him if he did not. Mr McCarthy now accepts there could have been as many as four
separate instances of intercourse between himself and the victim.
1 Crimes Act 1961, s 131(1). The charge carries a maximum penalty of seven years’
imprisonment.
District Court decision
[7] Judge O’Driscoll, sitting in the District Court at Gisborne, recited the relevant facts before turning to the aggravating features of the offending. The Judge identified a clear breach of trust but tended to the view that this feature of the offending was inherent in the charge. The Judge emphasised the vulnerability of the victim, commenting that she had come from a broken family background. The Judge also considered that there was a degree of pre-meditation in the offending given the repeated acts of intercourse.
[8] Before constructing his sentence, the Judge turned to consider the relevant principles and purposes of sentencing. He specifically identified deterrence as relevant. The Judge considered there “need[ed] to be a message sent to all others in the community not to take advantage of vulnerable children, particularly when they are placed in a position of trust with a caregiver”.
[9] After referring to various cases cited to him by counsel, the Judge considered
the appropriate starting point to be one of two and a half years’ imprisonment.
[10] In terms of the mitigating factors personal to Mr McCarthy, the Judge identified a lack of previous convictions, remorse, an offer to attend a restorative justice conference and an offer of reparation for emotional harm. The Judge also noted that he had a number of references before him which indicated that Mr McCarthy is regarded highly as a father, a grandfather and a mentor.
[11] The Judge reduced the sentence by four months to take into account the mitigating factors referred to above and by a further six and half months to give full credit for Mr McCarthy’s guilty plea.
[12] The Judge then considered whether to commute the sentence to one of home detention. I reproduce the relevant paragraphs in full because of their significance to the issue on appeal:
“[34] The issue that I must then decide, because that is a short-term sentence of imprisonment (under two years), is whether or not the Court can then impose and substitute imprisonment with a sentence of home detention.
[35] The view that I have taken is that it would not be appropriate to convert that sentence of imprisonment into home detention. In my view, the offending is too serious to impose a sentence of home detention in lieu of imprisonment. In my view, a sentence of home detention would not achieve the purposes and principles of sentencing, particularly that of deterrence and to hold you accountable.
[36] As I have said, a clear message needs to be sent to the community that those who are in a position of authority and responsibility, should not abuse that position, particularly when they have vulnerable persons in their care. I accept that in some cases home detention can achieve the purposes and principles of sentencing, but in my view in this case, it would not.
[37] I have not been provided with any cases at all in New Zealand where a sentence of home detention has been imposed for offending of this type and the reason for that is simply this; that the Courts have regarded this type of offending as being so serious to justify a sentence of imprisonment rather than an electronically-monitored sentence. For those reasons, I decline to convert the sentence of imprisonment to one of home detention.”
Approach on appeal
[13] The present appeal is governed by s 250 of the Criminal Procedure Act 2011. The Court can only allow the appeal if it is satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[14] The sole issue raised in this appeal is whether the sentence of 19 and half months’ imprisonment should have been commuted to one of home detention. There is clear appellate guidance on this issue. An appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. Rather, the question is whether the Judge erred in sentencing his or her sentencing discretion by applying an incorrect principle, giving insufficient or excessive weight to a particular
factor, or was plainly wrong.2 The discretion to be exercised by the sentencing judge
is a fettered one.3
2 James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 at [17].
3 Manikpersadh v R [2011] NZCA 452 at [12].
[15] In Fairbrother v R, the Court of Appeal, having reviewed the relevant case law on this issue, observed:4
“[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 counterveiling 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 sentencing to impose taking into account all the purposes of sentencing.”
Appellant’s submissions
[16] Mr Phelps, for Mr McCarthy, confirmed that there is no issue taken with the end sentence of imprisonment imposed by Judge O’Driscoll. Rather, in Mr Phelps’s submission, the Judge “did not conduct the sort of nuanced analysis that is required when considering the imposition of home detention as an alternative to a term of imprisonment”.
[17] The thrust of Mr Phelps’s submission is that the Judge prioritised deterrence without regard to any of the counterveiling sentencing purposes, particularly the desirability of keeping Mr McCarthy in the community and the need to impose the least restrictive sentencing outcome appropriate in the circumstances. He submits that the following factors favoured a sentence of home detention over a sentence of imprisonment:
(a) Mr McCarthy, at 47 years of age, was a first-time offender and it is clear from the references filed in support that the offending is properly characterised as an aberration.
(b)The pre-sentence report recognises that Mr McCarthy is a low-to- medium risk of reoffending.
(c) Mr McCarthy has been in custody in excess of two months, meaning his participation in the criminal justice system has already had a significant deterrent effect on Mr McCarthy personally.
(d)Home detention would have served the purpose of general deterrence on the facts of this case.
(e) A sentence of home detention would provide for Mr McCarthy’s
rehabilitation and reintegration through appropriate counselling.
(f) The offending was not as serious as other cases falling under this charge.
[18] To buttress his submission that home detention is appropriate despite the seriousness of the charge, Mr Phelps has located High Court authority in which a doctor was sentenced to nine months’ home detention and ordered to pay $10,000 reparation following guilty pleas to three charges of sexual conduct with a dependent family member. Unfortunately, Mr Phelps was unable to locate the Judge’s sentencing notes and instead refers to a decision of the Health Practitioners Disciplinary Tribunal which concerned the same doctor.
Crown submissions
[19] Mr Stuart, for the Crown, submits that the Judge did not err in imposing a sentence of imprisonment. Mr Stuart accepts that the Judge emphasised deterrence but submits it is clear from the wider context that denunciation and accountability were also significant factors that weighed in the decision. He submits that the Judge’s reference to a lack of similar cases resulting in home detention should be taken as emphasising the seriousness of the offending rather than signifying any limitation on the Judge’s ability to exercise his discretion.
[20] Mr Stuart further submits that the gravity and seriousness of the offending should not be understated. He says that the offending involved a significant power
imbalance, particularly because Mr McCarthy had personal knowledge of the
victim’s troubled past and the reasons why she needed his care and protection.
[21] Mr Stuart submits that the comments attributed to Mr McCarthy in the pre- sentence report indicate that rehabilitative concerns may carry less weight than they otherwise might. Mr Stuart submits that those comments evince a lack of a remorse and insight into the offending as well as an attempt to shift the blame for the offending onto the victim. In Mr Stuart’s submission, there must be significant doubt as to Mr McCarthy’s ability to meaningfully engage in rehabilitative processes. Correspondingly, the need to protect the community and the need to instil a sense of accountability assume greater significance in this case.
[22] Mr Stuart also refers to parity of sentencing levels with similar offending. He submits it is clear that sentencing outcomes short of imprisonment for this type of offending are unusual. He also submits that caution is required when considering the unreported case relied on by Mr Phelps because the Court has not been presented with sentencing notes or a summary of facts. He submits it is not possible to compare the number of incidents of sexual intercourse or over what period of time they occurred.
Analysis
[23] For Mr McCarthy’s appeal to succeed, the Court must be able to identify a specific error in the Judge’s refusal to grant home detention. As I have said, the nub of Mr Phelps’s argument is that the Judge erred because the purpose of deterrence was given priority without regard to any of the other counterveiling sentencing purposes. In my view, this submission overlooks a number of passages in the Judge’s sentencing notes which strongly indicate that the Judge had proper regard to the full spectrum of purposes and principles described in ss 7 and 8 of the Sentencing
Act. The Judge said:5
“In my view, a sentence of home detention would not achieve the purposes and principles of sentencing, particularly that of deterrence and to hold you accountable.”
[24] And:6
“I accept that in some cases home detention can achieve the purposes and principles of sentencing, but in my view in this case, it would not.”
[25] Moreover, it is apparent the Judge also had regard to s 16 of the Sentencing
Act, directing himself in the following terms:7
“I must impose the least restrictive sentence on you. I must not sentence you to imprisonment if any other sentence would achieve the purposes and principles of sentencing.”
[26] As can be seen, when the Judge’s discussion on whether to grant home detention is viewed within the overall context of his sentencing notes, it cannot be fairly said that the Judge failed to have regard to purposes of sentencing beyond deterrence. To the contrary, the Judge directed himself in mandatory language to sentence Mr McCarthy to the least restrictive outcome appropriate in the circumstances, having regard to the full complement of sentencing purposes and principles. He also acknowledged that home detention could achieve these purposes and principles but formed the view that in the particular case before him it would not.
[27] There is a further point. The Judge was clearly aware of Mr McCarthy’s previous good character, offer to make reparation and offer to attend restorative justice because he gave significant discounts for these factors when constructing his sentence. In my view, it is artificial to suggest that those factors did not weigh in the Judge’s assessment of whether home detention was the least restrictive sentencing outcome appropriate in the circumstances.
[28] Accordingly, the proper interpretation of the Judge’s sentencing notes is that, after considering the various principles and purposes of sentencing, the Judge emphasised the need for deterrence given the nature of Mr McCarthy’s offending. In this regard, I accept Mr Stuart’s submission that the Judge’s reference to a lack of
similar cases resulting in home detention should be taken as emphasising the
6 At [36].
seriousness of the offending rather than signifying any limitation on the Judge’s
ability to exercise his discretion.
[29] Approached in this way, the only way the appeal can succeed is if the Judge erred by attaching “excessive weight” to the purpose of deterrence.8 I am not satisfied any such error was made. As Mr Stuart points out, Mr McCarthy had personal knowledge of the victim’s troubled past and the reasons why she needed his care and protection. His offending therefore constituted a serious breach of the trust that had been reposed in him when he was entrusted with the care of a vulnerable
young person. The need to deter such conduct was rightly emphasised by the Judge.
[30] A strong need for deterrence can, of course, be counterweighed by other factors such as the desire to assist in an offender’s rehabilitation and reintegration. However, there is force in Mr Stuart’s submission that the comments attributed to Mr McCarthy in the pre-sentence report indicate that rehabilitative concerns may carry less weight than they otherwise might. Of particular concern is Mr McCarthy’s initial attempt to shift the blame for his offending onto the victim.
[31] For these reasons, I am not satisfied that the Judge applied excessive weight to the purpose of deterrence or insufficient weight to any other counterveiling sentencing purposes. Having found that the Judge did not err in the exercise of his fettered discretion, it follows that I must dismiss the appeal.
Result
[32] The appeal is dismissed.
Moore J
Solicitors:
Mr Phelps, Gisborne
Crown Solicitor, Gisborne