Mitchelmore v The Queen
[2021] NZHC 3432
•14 December 2021
TO PROTECT THE IDENTITY OF THE CHILD, PARTS OF THIS JUDGMENT HAVE BEEN REDACTED. IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-409-000149
[2021] NZHC 3432
BETWEEN KEITH MITCHELMORE
Appellant
AND
THE QUEEN
Respondent
Hearing: 9 December 2021 Appearances:
N A Pointer for the Appellant
S R Bicknell-Young for the Respondent
Judgment:
14 December 2021
JUDGMENT OF NATION J
Introduction
[1] The appellant, Keith Mitchelmore, pleaded guilty to a charge of doing an indecent act on a child under 12 years old.1 He was sentenced in the Christchurch District Court by Judge Garland to 17 months’ imprisonment.2 He appeals solely on the basis that sentence should have been commuted to home detention.
1 Crimes Act 1961, s 132(3); maximum penalty 10 years’ imprisonment.
2 R v Mitchelmore [2021] NZDC 20496.
MITCHELMORE v R [2021] NZHC 3432 [14 December 2021]
Background
[2] The victim in this case is [the child]. Between 2013 and 2018, the [child] would stay overnight with Mr Mitchelmore and his wife […]. On occasion, early in the morning the [child] would climb into bed with Mr Mitchelmore and his wife.
[3] The first instance of offending was when the victim was about six years old. Mr Mitchelmore began rubbing the victim on her back while she lay in bed next to him. He then rubbed the victim all over her body including her breasts, legs and vaginal area. The rubbing occurred on her bare legs and on top of her clothing. On one occasion, Mr Mitchelmore pushed the victims head down until she faced his stomach area.
[4] The incidents lasted for about a minute. They would occur while Mr Mitchelmore was on his own with the victim or when his wife [was] in the bed.
[5] Similar instances of offending occurred eight or nine times until the victim was eight years old.
[6] Mr Mitchelmore voluntarily approached the Police and admitted the offending. He said he gained sexual gratification from the interactions and was very remorseful for what he had put [the child] through.
District Court decision
[7] The Judge considered the aggravating features of Mr Mitchelmore’s offending were the age of the victim, the victim’s vulnerability given Mr Mitchelmore’s authority over her, the gross breach of trust, the intrusiveness and intensity of the act, the repeated instances of the offending and the harm done to the victim.
[8] The Judge noted there is no guideline judgment for offending of this kind. He went on to consider a number of cases referred to him by counsel.3 The Judge
3 Trim v Police HC Palmerston North AP44/01, 6 March 2002; R v M [2000] 2 NZLR 60 (CA); and
McKelvey v Police HC Palmerston North CRI-2004-454-69, 24 September 2004.
considered the salient factors in each of those cases and compared them to the present offending before setting the starting point of two years’ imprisonment.
[9] In 2004, Mr Mitchelmore was convicted on a charge of unlawful sexual connection with a male under the age of 12 and three charges of indecency with a boy under 12. The Judge applied an uplift of three months to reflect this personal aggravating factor.
[10] The Judge applied a discount of 10 months (just over 35 per cent) to reflect Mr Mitchelmore’s early guilty plea and his demonstrated remorse. This resulted in an end sentence of 17 months’ imprisonment.
[11] In considering whether to commute that sentence to home detention the Judge noted Mr Mitchelmore was 71 years old, had previously been sentence to a term of imprisonment for similar offending and was at high risk of re-offending. He considered a sentence of home detention would not be sufficient to adequately meet the purposes and principles of sentencing and, in particular, the need to denounce Mr Mitchelmore’s conduct and deter him and others from committing similar offending.
Principles on appeal
[12] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 As the Court of Appeal stated in Tutakangahau v R, an appellate court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.5 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.6
4 Criminal Procedure Act 2011, ss 250(2) and 250(3).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
6 Ripia v R [2011] NZCA 101 at [15].
[13] Home detention is an alternative to a short-term sentence of imprisonment.7 The Court must be satisfied that the purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence.8
[14] An appeal court must focus on the identification of error, having regard to the discretionary nature of the decision.9 The Court of Appeal in Manikpersadh v R said:10
[11] This Court identified the appropriate approach in James v R in this way:11
[17] We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the judge] erred in exercising [their] sentencing discretion: that is, did [they] apply an incorrect principle, give insufficient or excessive weight to a factor, or [were they] plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.
[12] We agree with counsel for the respondent’s assessment that the proper approach of an appellate Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing … on the identification of error, if any, in the court below.”
[15]In Fairbrother v R, the Court of Appeal stated:12
[30] … 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.
[31] Sometimes, as this Court said in R v D (CA253/2008), that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other”…
7 Sentencing Act 2002, s 15A(1)(b).
8 Section 15A(1)(a).
9 Doolan v R [2011] NZCA 542 at [39].
10 Manikpersadh v R [2011] NZCA 452.
11 James v R [2010] NZCA 206 (footnotes omitted).
12 Fairbrother v R [2013] NZCA 340, citing R v D (CA253/2008) [2008] NZCA 254 at [66].
Submissions
Appellant’s submissions
[16] At the outset of her oral submissions, Ms Pointer acknowledged that there is, at this point, no approved address for home detention. There was no approved address at the time of the sentencing in the District Court. The appeal is thus against the Judge’s refusal to give leave to Mr Mitchelmore to apply for home detention at the same time as he imposed the sentence of imprisonment.
[17] Ms Pointer, on behalf of Mr Mitchelmore, submitted the District Court Judge erred in placing excessive emphasis on the sentencing principles of deterrence and denunciation and, in doing so, failed to properly weigh the other purposes and principles.
[18] With reference to the observations made in the High Court in Bird v Police, it was submitted Mr Mitchelmore’s registration under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act) has punitive consequences that should be considered when assessing whether to commute the sentence to home detention.13 She submitted the Judge had erred in not referring to this.
[19] Ms Pointer noted Mr Mitchelmore accepted responsibility for the offending and pleaded guilty at the earliest opportunity. He cooperated fully with Police and offered a detailed confession. Mr Mitchelmore offered to make a payment of emotional harm reparation to the victim and had funds available at the time of sentencing. She submitted the Judge had erred in not considering this in his evaluation.
[20] Ms Pointer submitted the Judge erred in failing to take into account Mr Mitchelmore’s rehabilitative potential and the availability of suitable intervention in the community when assessing whether to convert the sentence to one of home detention.
13 Bird v Police [2017] NZHC 1296.
[21] While it was accepted Mr Mitchelmore has relevant prior convictions, Ms Pointer contended they are of some vintage. The offending for which he was convicted in 2004 had occurred in 1989. She submitted this showed he was capable of living offence-free in the community. Further, the latest offending ended in 2018, which she said supports the Court imposing home detention.
[22] Ms Pointer submitted Mr Mitchelmore’s age (71) makes a sentence of imprisonment appreciably harder than it would be for a younger person. Further, she said Mr Mitchelmore has engaged in the community in a pro-social manner including engaging in voluntary work.
Respondent’s submissions
[23] Ms Lancaster, for the respondent, submitted the District Court Judge was correct to find that no sentence other than imprisonment would achieve the purposes and principles relevant to Mr Mitchelmore’s sentencing.
[24] Ms Lancaster noted the combination of aggravating factors illustrates the seriousness of the offending. She noted, while the victim was not prepared to complete a victim impact statement, the Judge considered it was fair to assume the emotional harm was very significant.
[25] It was submitted this was Mr Mitchelmore’s fourth conviction of a similar nature. Ms Lancaster referred to the pre-sentence report in which it was noted Mr Mitchelmore planned to abuse [the child] for his own gratification and that he encouraged her to get into bed with him to see how far he could “push the boundaries”.
[26] Ms Lancaster submitted it was relevant that Mr Mitchelmore had completed sexual offending programmes, which have evidently had no sustained effect. It was submitted Mr Mitchelmore will have programmes available to him while in custody, accordingly that is a neutral factor in considering whether to commute the sentence to home detention.
[27] The respondent acknowledged Mr Mitchelmore appears to be genuinely remorseful and he admitted offending beyond what the victim had disclosed.
However, it was submitted, those factors were adequately recognised by the discount to the starting point and must be balanced against the repetitive nature of the offending and the seriousness of the breach of trust.
[28] Ms Lancaster submitted the delay between the offending ending and sentencing is not a justifiable reason to commute the sentence to home detention. It does not do anything to mitigate or diminish the need for denunciation, deterrence and accountability.
Analysis
[29] In order to allow the appeal and grant leave under s 80I of the Act, I would have to conclude that I would have sentenced Mr Mitchelmore to home detention, but for a suitable residence.14
[30] There was no challenge to the Judge’s initial starting point sentence of two years’ imprisonment or the length of the ultimate prison sentence. The key issue on appeal is whether the District Court Judge erred in exercising his discretion to decline to commute the sentence of imprisonment to home detention or to reserve leave to apply for home detention.
[31] The pre-sentence report is insightful. It records Mr Mitchelmore admitted his offending was planned to the extent that he wanted to achieve sexual stimulation and that he used the victim to achieve that goal. The report records his behaviour would have been physically alarming and distressing for the victim. Furthermore, Mr Mitchelmore’s family relationships have been grossly damaged. His wife of more than 40 years has separated from him and none of his children want to have contact. […].
[32] The pre-sentence report assessed Mr Mitchelmore as having a high risk of re- offending. He had now offended against victims of both genders and has an inclination towards molesting pre-pubescent children.
14 Sentencing Act, s 80I(1)(b). See Korewha v R [2018] NZHC 1896 at [17].
[33] As noted by the District Court Judge, there are rehabilitative programmes available both in the community and in prison. I agree with Ms Pointer that this is not a circumstance where imprisonment is the only option to provide rehabilitation. However, that is just one factor to be considered.
[34] As noted above, Mr Mitchelmore completed the Kia Marama programme in 2005 when he was sentenced to imprisonment for sexual offending against five pre- adolescent boys between 1988 and 1992. He was sentenced to three years’ imprisonment for that offending. Mr Mitchelmore clearly did not use the skills provided in the programme as his offending against the victim commenced in 2013, some eight years after he completed the programme. The repetition of offending of this kind is of concern and required a stern sentencing response. Perhaps with the benefit of his earlier participation in the Kia Marama programme, Mr Mitchelmore had some insight into why this sort of offending had occurred. Instead of using that insight to protect himself and a young [child] from the consequences of further offending, he consciously engaged in indecent touching. He knew what he was doing was wrong. He knew he was doing it for his own sexual gratification. He told the probation officer he had encouraged the [child] to get into bed with him and then “saw how far [he] could push the boundaries”.
[35] I do not accept the submission that Mr Mitchelmore’s history shows he is capable of living in the community for long periods without offending. This offending occurred on a number of occasions in the period between 2013 and 2018. This was after he had been in the treatment programmes after the 2004 sentencing. All this suggests that, if the opportunity to offend presented itself again, there would be significant risk that he would do so.
[36] I accept Mr Mitchelmore has expressed genuine remorse. He went to the Police and made a full confession, providing information beyond that which had been detailed by the victim. However, it appears, he did so only after he had been confronted by [the family of the victim and they were] going to report him to the Police.
[37] The District Court Judge applied a 10 per cent discount for remorse, in addition to the credit for a guilty plea. This was appropriate.
[38] Through counsel’s submissions, Mr Mitchelmore had indicated a willingness to make an emotional harm payment to the victim. I was told a payment would have been made from his interest in the share of the former matrimonial home. The Judge did not refer to that particular offer in his sentencing remarks. The Judge nevertheless sentenced Mr Mitchelmore on the basis that, when he went to the Police, he was “very open and honest and genuinely remorseful”.15 The offer of reparation was consistent with this but, in my view, would not have required further consideration. Such a payment, while consistent with remorse, would not have addressed the particular harm that a victim and her family suffers with this sort of offending.
[39] Ms Pointer submitted there was an error in the Judge failing to consider that, with a sentence of imprisonment but with leave to apply for home detention, or if a sentence of home detention was to be imposed, the Judge could have ordered that Mr Mitchelmore’s name be entered on the Child Sex Offender Register so he would suffer the punitive effects of such a registration.
[40] Mr Mitchelmore was sentenced to imprisonment so his name was going to be automatically entered on the Child Sex Offender Register. The Judge did not refer to that consequence in his sentencing remarks but I do not accept this meant he had not taken this into account or given it any consideration.
[41] The Crown brought this consequence to his attention in their submissions. They had also submitted, if Mr Mitchelmore was to receive a non-custodial sentence, they would seek an order placing him on the Child Sex Offender Register.
[42] The entry of an offender’s name on the Child Sex Offender Register might, in certain circumstances, be a matter to be carefully weighed in the balance when considering the extent to which imprisonment, rather than home detention, is necessary for the purpose of protecting a victim and others in the community from similar offending in the future. It is going to be of less importance in deciding whether imprisonment, rather than home detention, is necessary to hold an offender, such as
15 R v Mitchelmore, above n 2, at [16].
Mr Mitchelmore, accountable for his offending and to deter him and others from similar offending in the future. The Child Sex Offender Register is primarily a tool for the Police and other appropriate Government agencies to use to reduce the risk of further offending. Although it has punitive consequences, the public would not see it as a measure of denunciation for the particular offending by this offender in all the circumstances of this particular case.
[43] There was thus no error in the Judge not referring to this matter in deciding that imprisonment was the necessary sentence. I am also not satisfied the potential for Mr Mitchelmore’s name to be registered on the Child Sex Offender Register required express consideration in the sentencing remarks. I am also not persuaded that, if this had been expressly considered, the ultimate sentence would or should have been different.
[44] Ms Pointer submitted at the age of 71 a term of imprisonment will be appreciably harder for Mr Mitchelmore. This is undoubtedly so. However, without more, that is not a reason to commute a sentence to home detention.
[45] I agree with the District Court Judge that the need to denounce Mr Mitchelmore’s conduct, deter him and others from committing similar offending, and to hold Mr Mitchelmore accountable for the harm done to the victim are paramount considerations. These considerations must be balanced against the need to assist Mr Mitchelmore in his rehabilitation and reintegration. As I have noted above, there are programmes available both in custody and in the community and I treat the availability of such programmes as a neutral consideration.
[46] In my view, the District Court Judge made no discernible error in exercising his discretion to decline Mr Mitchelmore leave to apply for home detention. A sentence of imprisonment for conduct of the kind that occurred here, in all the circumstances of this case, was the least restrictive outcome.
Conclusion
[47]I have not been satisfied that a different sentence should have been imposed.
[48]The appeal is dismissed.
Solicitors:
N A Pointer, Barrister, Christchurch Crown Solicitors Office, Christchurch.
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