Metua v R
[2018] NZHC 246
•26 February 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-000474
[2018] NZHC 246
BETWEEN NGATUAINE METUA
Appellant
AND
THE QUEEN
Respondent
Hearing: 5 February 2018 Appearances:
J M Scott for the Appellant
J E L Carruthers for the Respondent
Judgment:
26 February 2018
JUDGMENT OF HINTON J
This judgment was delivered by me on 26 February 2018 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
MOJ Public Defence Service, Auckland Crown Law, Wellington
NGATUAINE METUA v R [2018] NZHC 246 [26 February 2018]
[1] Ngatuine Metua pleaded guilty to one charge of doing an indecent act on a child.1 He was sentenced to a term of eight months’ imprisonment by Judge Thomas in the Auckland District Court on 19 December 2017.2
[2]Mr Metua now appeals his sentence.
Factual background
[3] The offending occurred after Mr Metua, then 65 years old, had spent the afternoon drinking with others in a friend’s garage. In the early evening, Mr Metua went into the hallway of the house. He saw the 10-year-old complainant, whom he knew, in the lounge. He called her over to him, hugged her tightly, and told her to wait in the hallway while he used the bathroom.
[4] Upon his return, Mr Metua put his hands between the complainant’s legs and touched her genitals over her clothing. She asked him to stop; he did not. He told her not to tell anyone or he would go to jail.
District Court judgment
[5] Judge Thomas in the District Court sentenced Mr Metua following an earlier sentence indication.3 He took a starting point of 14 months’ imprisonment.
[6] He noted that the pre-sentence report was not “particularly favourable”, highlighting that it assessed Mr Metua’s risk of re-offending as high. However, he noted the “much more favourable” psychological report, and that it assessed Mr Metua’s risk of re-offending as much lower. He accepted prison would be harder on Mr Metua than on the ordinary prisoner due to his health, age and the fact that English is his second language. He allowed discounts for these factors, as well as for Mr Metua’s early guilty plea.
1 Crimes Act 1961, s 132(3).
2 R v Metua [2017] NZDC 29572.
3 R v Metua DC Auckland CRI-2017-004-003725, 20 July 2017.
[7] The Judge had noted in his earlier sentence indication that home detention was “less likely than prison because of the seriousness of this type of offending” but indicated that he would consider the point fully after the pre-sentence report and further submissions. 4 At sentencing he concluded that while the reports provided further background, they did not alter his earlier view that prison was the more appropriate response and the least restrictive outcome available.5
[8] The Judge imposed a final sentence of eight months’ imprisonment. Mr Metua automatically became a registrable offender under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 as a result of receiving a sentence of imprisonment for a class two qualifying offence.6 He is thus subject to the reporting obligations under that Act for 15 years from release from custody.7
Grounds of appeal
[9] Ms Scott for Mr Metua submits that the Judge should have exercised his discretion to impose a sentence of home detention. The particular grounds of appeal are that the Judge:
(a)erred in stating that the pre-sentence report assessed Mr Metua’s risk of re-offending as high (when it in fact said the risk was low);
(b)gave insufficient weight to the opinion of the expert psychologist, including her assessment of Mr Metua’s risk of re-offending as low and his rehabilitative needs;
(c)adopted an erroneous view of the effect of the offending on the victim;
4 At [6].
5 At [4].
6 Child Protection (Chid Sex Offender Government Agency Registration) Act 2016, s 7(1)(a) and sch 2(2)(c).
7 Sections 34(a) and 35(1)(b).
(d)failed to consider mandatory registration on the Child Sex Offenders Register for fifteen years as an additional punitive element on Mr Metua; and
(e)was plainly wrong in imposing a sentence of imprisonment.
Approach on appeal
[10] An appeal against sentence is an appeal against a discretion. It must be allowed only if the court is satisfied there has been a material error in the sentence imposed and that a different sentence should be imposed.8 An appellate court will not intervene unless the judge acted on some wrong principle, considered an irrelevant matter or overlooked a relevant one, or was plainly wrong.9 If a sentence is significantly more severe than it ought to have been given the offending and the culpability of the offender, then an appeal will be allowed on grounds that the sentence is manifestly excessive.10 The same approach applies to exercise of the discretion not to impose home detention.11
Analysis
Home detention
[11] Sexual offending against children is undoubtedly serious in all instances. Consequently, imprisonment is generally the appropriate sentence for such offending.12 However, this is not to say that home detention is not an available option. The cases cited by the parties demonstrate that sentences less than imprisonment are imposed for child sex offending from time to time.13 It is well-established that a sentence of home detention is a significant sentence in its own
8 Criminal Procedure Act 2011, s 250.
9 Kumar v R [2015] NZCA 460 at [79].
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
11 Palmer v R [2016] NZCA 541 at [18].
12 Kennedy v R [2011] NZCA 569 at [8]; R v S (CA465/05) CA465/05, 11 April 2006 at [12];
ZZ (CA369/2011) v R [2011] NZCA 662 at [36].
13 See, for example, Fowler v R [2017] NZHC 1892; Bird v R [2017] NZHC 1296; Goose v Police
[2017] NZHC 2453.
right, and also serves the purposes of denunciation and deterrence much as imprisonment does.14 As the Court of Appeal held in Kennedy v R:15
It is not necessary to adopt an “only in exceptional circumstances” approach to home detention in relation to sexual offending against children. All sentences that are potentially in the range should be considered on their merits, although it will be recognised that the likely sentencing outcome for sexual offending against children is imprisonment.
[12] Accordingly, as with any offence, where a proposed term of imprisonment is under two years the sentencing court is obliged to consider a term of home detention.16 Where appropriate, after considering the purposes of sentencing, home detention is to be imposed. The Court cannot impose a sentence of imprisonment unless satisfied that relevant sentencing purposes cannot be achieved by another sentence.17 The Court of Appeal in Fairbrother v R stressed that in choosing between the two options, “the choice must be intelligible”, which requires that the “factors that really count must be identified and weighed”.18 In that case, which was also a case dealing with sexual offending against children, the Court provided useful guidance on when home detention should be substituted for imprisonment on appeal:19
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 countervailing purposes of sentence.
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 sentence to impose taking into account all the purposes of sentencing.
[13] At first instance in Mr Metua’s case, the Judge commented in his sentence indication that home detention, although less likely, was still an available option.
14 R v Iosefa [2008] NZCA 453 at [41].
15 Kennedy v R, above n 12, at [8].
16 Sentencing Act, s 15A.
17 Sentencing Act, s 16(2).
18 Fairbrother v R [2013] NZCA 340 at [31].
19 At [29]-[30] (footnotes omitted).
However, no further analysis was undertaken and the issue was explicitly (and appropriately) left until sentencing. But at sentencing the Judge did not seem to consider the option of home detention any further, relying instead on the indication, which had not explored the point. Having noted that the psychological report was favourable and assessed Mr Metua’s risk of reoffending as low, he merely continued:20
The primary principles, however, remain denunciation and deterrence. While the reports provide me with some more background about your situation, they do not alter the indication I gave you that prison was the more appropriate response. It remains the least restrictive outcome.
[14] This approach did not fairly amount to a balancing exercise between imprisonment and home detention. It came perilously close to treating the option of home detention as precluded due to the nature of the charge. It gave priority to the principles of denunciation and deterrence without acknowledging those principles can also be served by a sentence of home detention in appropriate cases, and without having regard to the countervailing purposes of sentence. This amounted to an error in the Judge’s approach.
[15] There were in fact several factors pointing towards home detention. First, both the pre-sentence report and the clinical psychologist’s report assessed Mr Metua as at low risk of reoffending. It is likely the Judge did not take this factor into account to the extent appropriate given he mistakenly stated the pre-sentence report assessed Mr Metua’s risk of reoffending as high. In fact, like the psychological assessment, it assessed his risk as low.21 Secondly, Mr Metua has no history of sexual offending, which, given his age, must point against his risk in the community as both reports noted. Thirdly, the Judge should have assessed the gravity of Mr Metua’s specific instance of offending, rather than just the seriousness of child sexual offending in general. His offending was of course serious as all sexual offending against children is, and particularly so given the young age of his victim and the age difference between the two. Nonetheless, it was a relatively minor example of offending of its kind, indicated by the short sentence of imprisonment imposed. It involved one
20 At [4].
21 I note the report nonetheless made some unfavourable observations; it noted Mr Metua’s minimisation of his offending when interviewed, a lack of pro social support and his problematic alcohol use. The psychological assessment differed from some of these criticisms.
discrete instance of offending against one victim. There was no suggestion of premeditation; the incident took place in a hallway where Mr Metua could presumably have been easily discovered. Fourthly, as the Judge recognised, Mr Metua is 67 years old, faces health problems, and speaks English as a second language. Although these factors do not preclude prison, they arguably point toward home detention.
[16] The psychological assessment also seemingly points toward home detention. The report concluded that Mr Metua had a “fair” level of insight. The report noted some minimisation of the offending, notably that Mr Metua denied touching the victim on her vagina. This is undoubtedly of concern, as the Crown points out. However, the report concluded that despite this Mr Metua was “sincere”, demonstrated genuine remorse and showed concern for the victim. It suggested minimisation was likely due to Mr Metua’s shame rather than denial of his offending. The report particularly stressed Mr Metua’s problems with alcohol, and concluded that Mr Metua’s rehabilitative needs are most likely to be met by completion of an alcohol and drug programme, and a prohibition on consumption of alcohol. It noted that Mr Metua does not drive nor frequent places where children are present. Overall, it assessed Mr Metua’s risk of re-offending as low on multiple assessment tools.
[17] Importantly, Ms Scott for Mr Metua stresses that Mr Metua’s rehabilitative needs favour home detention. She notes that Mr Metua will be unable to complete the necessary alcohol programmes while in prison for such a short stint. She submits that it is more likely he will successfully receive alcohol treatment if home detention is imposed, as he will be able to start the programme while on home detention. She notes post-release conditions to ensure completion of alcohol treatment can only be imposed for up to six months post-imprisonment,22 but for 12 months post-home detention.23 On the basis of this information it appears home detention will therefore better facilitate Mr Metua’s rehabilitation, and therefore protection of the community. Mr Metua’s rehabilitative needs were a relevant factor not explicitly taken into account by the Judge at sentencing.
22 Sentencing Act 2002, s 93(2A).
23 Sentencing Act 2002, s 80N.
[18] In these circumstances, a sentence of home detention could have satisfied the relevant principles of sentencing, including rehabilitation, deterrence and denunciation. There was no clear need for imprisonment to protect the community given the low risk assessment reached by both the report writer and the psychologist. The most serious sentence Mr Metua has previously served was non-residential periodic detention over twenty years ago. Home detention is considerably more serious and so likely to deter and denounce on a personal level. As the Courts have previously affirmed, home detention is a serious punishment and may satisfy requirements for denunciation and deterrence on a society-wide level. Those principles are, in my view, satisfied here given Mr Metua’s personal circumstances and the nature of the offending.
Child Sex Offender Registration
[19] Ms Scott argues that the Judge should have also considered Mr Metua’s registration on the Child Sex Offender Registry which follows by operation of law as a result of a sentence of imprisonment. Ms Scott for Mr Metua submits that the Judge ought to have taken this factor into account as an additional punitive aspect of Mr Metua’s sentence, which she says would weigh in favour of imposing home detention, not prison. The Crown argues strongly against this point.
[20] The argument is an interesting one, but it is unnecessary for me to resolve because I am of the view in any event that the judgment is in error for the reasons I have stated and that the sentence was manifestly unjust.
[21] However, it is important to note that for a non-custodial sentence, a Judge may use their discretion to make an order to place an offender on the Register only if satisfied the offender poses a risk to the lives or sexual safety of one or more children, or children generally.24
24 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 9(2).
[22] Responsibly, the Crown says that Mr Metua would not meet the threshold of risk required for a discretionary order should he receive a non-custodial sentence. I agree Mr Metua does not meet that threshold.25
Conclusion
[23] The Judge erred in failing to sufficiently consider the option of home detention with respect to settled principles about that sentence’s punitive and deterrent impact. It was an error to disregard in effect, home detention as an option. This may have in part come about due to an understandable misreading of the pre-sentence report.
[24] Taking into account those factors, I am unable to agree with the Judge that the circumstances favoured a sentence of imprisonment for Mr Metua. The sentence ultimately reached was manifestly excessive. Home detention was the appropriate sentence.
[25] I note that the initial pre-sentence report assessed the proposed address as unsuitable for home detention because of its proximity to the victim and its proximity to locations where children would be present. It has subsequently been confirmed that the pre-sentence report was in error, in that the proposed address is not close to the victim. The clinical psychologist’s report concludes that the address is suitable despite its proximity to a playground, provided suitable conditions are imposed.
[26] I note for completeness that I do not consider the Judge erred by giving insufficient weight to the opinion of the expert psychologist, nor that he took an erroneous view of the effect of the offending on the victim as submitted. Weighting is a matter for the Judge, and he was entitled to take into account the expected impact of offending on children, who are understandably often unable to explain clearly the impact on their lives of sexual offending. Also, I agree with Mr Carruthers that a victim impact statement by a 10-year old that may not on its face exhibit significant
Taking into account the discussion of that threshold in Fowler v R [2017] NZHC 1892 at [23]-[34];
Goose v Police [2017] NZHC 2453 at [20]-[30]; Escott v R [2017] NZHC 2853 at [35]-[39].
impact is hardly conclusive: to the contrary. I consider it reasonable to proceed on the basis of assumed significant negative impact, as the Judge did.
Result
[27] Given the nature of the offending, I do not consider it appropriate to follow the usual course of halving the period of imprisonment. As the Court of Appeal said in R v Bisschop halving is not necessarily always appropriate.26 For purposes of denunciation and deterrence, a sentence of six months’ home detention would have been appropriate, rather than the eight months’ prison sentence imposed. Mr Metua has already served two months of his sentence in prison. To reflect that, I impose a sentence of four months’ home detention, on standard conditions and also on the proposed special conditions recommended in the pre-sentence report. The special conditions are to continue as post-detention conditions for a period of 12 months.
---------------------------------------------------
Hinton J
26 R v Bisschop [2008] NZCA 229 at [18]–[19].
16