N v The King
[2025] NZHC 1662
•19 June 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2024-485-23
CRI-2024-485-24 [2025] NZHC 1662
BETWEEN N
Appellant
AND
THE KING
Respondent
Hearing: 12 June 2025 Counsel:
H G de Groot for appellant
N Jamieson and R S Bedggood for respondent
Judgment:
19 June 2025
JUDGMENT OF ISAC J
[Sentence appeal]
Introduction
[1] The appellant, N, appeals a sentence of 11 months’ imprisonment imposed by Judge Hobbs in the District Court on a range of charges.1 Unusually the primary focus of the appeal is not to the sentence imposed. Rather, it is the automatic registration of the appellant on the Child Sex Offender Register which followed as a result of the imposition of a custodial sentence. N argues his sexual offending was minor and lifetime registration is arbitrary and disproportionate.
[2] Judge Hobbs passed sentence on 6 March 2024. An appeal was filed in this Court on 4 April 2024. However, N sought to adjourn the appeal pending delivery of the Court of Appeal’s judgment Williams v Police.2 That judgment was delivered on
1 R v [N] [2024] NZDC 5096 [sentencing notes].
2 Williams v Police [2025] NZCA 15.
N v R [2025] NZHC 1662 [19 June 2025]
19 February 2025. In the intervening time the appellant completed his sentence of imprisonment. Faced with this obstacle Mr de Groot for the appellant argues the appropriate outcome on appeal is a conviction and discharge on two charges of sexual connection with a young person. If that were to occur registration would be a matter at the discretion of the Court under s 9(1) of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016. He argues exceptional circumstances exist warranting a non-custodial sentence and that the Court should not make an order for registration accordingly.
[3]I have concluded the appeal should be dismissed. My reasons follow.
The offending
[4] The sentence of imprisonment imposed by the District Court related to 11 charges. These were:
(a)Two charges of sexual connection with a young person — one of which was a representative charge—contrary to s 134(1) of the Crimes Act 1961. The maximum penalty for the offence is 10 years’ imprisonment;
(b)Seven further police charges comprising;
(i)Strangulation and injuring with intent to injure concerning a different female victim, carrying maximum penalties of seven years and five years’ imprisonment respectively;
(ii)Possession of cannabis;3
(iii)Driving while forbidden;4
(iv)Dangerous driving;5
3 Misuse of Drugs Act 1975, s 7(1)(a) and (2), maximum penalty three months’ imprisonment.
4 Land Transport Act 1998, s 31(1)(a)(i) and (2), maximum penalty $1,000 fine.
5 Land Transport Act, s 35(1)(b), maximum penalty of three months’ imprisonment.
(v)Dangerous driving while failing to stop;6
(vi)Resisting arrest;7 and
(c)Two Corrections charges of breaching community detention.8
[5] The summary of facts for the sexual offending records the appellant and victim were unknown to each other but met during a chance encounter in December 2021. The victim was 12 years old and had attended a youth group event in central Wellington. She was with two older friends on Manners Street when they were approached by the appellant and his friend. It seems after some discussion the group “acquired” a stolen vehicle. The group then spent the next day or more driving around the lower North Island before eventually making their way to N’s apartment on Lambton Quay. After watching television the appellant picked up the victim and carried her into his bedroom where she eventually fell asleep. She was woken some time later to find the defendant touching and cuddling her. He then began kissing her neck and removed her clothing. Thereafter he climbed on top of the victim and had sexual intercourse with her until he ejaculated. The pair then fell asleep.
[6] The next morning the appellant asked the victim to have a shower with him. This led to further sexual activity culminating once again in sexual intercourse ending when the appellant had ejaculated inside the victim. The summary of facts suggests the appellant did not use a condom on either occasion.
[7] The other lead charges for which the appellant was sentenced related to a different victim and stemmed from domestic violence occurring in Levin. A summary of facts has not been provided to the Court so the following outline is drawn from the District Court’s sentencing notes.
[8] On 26 March 2024 the appellant picked up the victim from her sister’s house and drove her to Levin. When getting out of the vehicle he took hold of the victim and
6 Land Transport Act, s 35(1)(c), maximum penalty of three months’ imprisonment.
7 Summary Offences Act 1981, s 23(a), maximum penalty of three months’ imprisonment.
8 Sentencing Act 2002, s 69G, maximum penalty six months’ imprisonment.
pinned her against the car, where he punched her repeatedly in the face and head.9 He then grabbed her around the throat squeezing hard enough to prevent her from breathing.10 After opening the boot of the vehicle he forced the victim inside and continued to punch her head.11 After the assault N drove the victim to a lake where they spent the night. The following morning the victim was able to call her sister to collect her. She suffered swelling and bruising on the right-side of her face, a black eye, bruising to her chin and multiple bruises on her neck.12
[9] The remaining charges arose from incidents occurring on 4 January 2020, 24 March 2023 and 17 May 2023 and are not material to the appeal.13
The decision under appeal
[10] The Judge’s approach to sentencing was to fix separate but cumulative starting points for the sexual and violence offending. He then applied an uplift to reflect the remaining charges before providing a generous reduction for totality and addressing personal mitigating factors.
[11] After setting out the facts of the sexual offending the Judge noted there was no tariff or guideline judgment.14 However, in R v Johnson, the Court of Appeal had emphasised the “protective nature of the charges” and indicated that a four year starting point was appropriate for offending involving moderate culpability.15 The aggravating features in the present case were the age disparity between the appellant and his victim—12 years and 20 years respectively; the nature of the sexual violation and the extent of the conduct.16 A starting point of two and a half years’ imprisonment was appropriate overall.17
[12] Turning to the charges of injuring and strangulation, the Judge observed the offending involved repeated attacks to the victim’s head and took place in a domestic
9 Sentencing notes, above n 1, at [19].
10 At [19].
11 At [19].
12 At [19]–[20].
13 At [21]–[25].
14 At [8].
15 At [8], citing R v Johnson [2010] NZCA 168.
16 At [13].
17 At [14].
setting.18 The force applied during the strangulation was sufficient to result in the victim struggling to breathe, and she suffered other injuries.19 Those aggravating features warranted a starting point of two and a half years’ imprisonment uplifted by six months to take account of the remaining Police and Corrections charges.20 That produced a global starting point of five and a half years’ imprisonment for all offences. However, an 18 month totality reduction was applied resulting in an adjusted starting point of four years’ imprisonment.21
[13] Mitigating factors included an early guilty plea, youth and adverse childhood experiences. This resulted in a total further reduction on the starting point of 55 per cent, resulting in an end sentence of 22 months’ imprisonment.22
[14] The Judge was not prepared to commute the sentence of imprisonment to home detention to avoid the automatic requirement under s 9(2) of the Act for registration on the Child Sex Offender Register, where a custodial sentence is imposed for a qualifying offence.23 The Judge noted that the appellant was a repeat offender, in that he had a previous notation in the Youth Court for sexual connection with a young person.24 He also had a number of previous convictions in the District Court for violence, including male assaults female, common assault and wounding.25 The Judge concluded:26
… Your current offending is undoubtedly serious, both in terms of the sexual connection with a young person and the domestic violence. You have in the past breached community-based sentences, including four convictions for breaching intensive supervision and, significantly two for breaching community detention.
[15] In addition, the Judge noted that the pre-sentence report did not recommend home detention as the proposed address was unsuitable.27
18 At [30].
19 At [30].
20 At [31].
21 At [32]–[34].
22 At [36]–[40].
23 At [49].
24 At [51].
25 At [51].
26 At [51].
27 At [53].
The Court of Appeal’s decision in Williams v Police
[16] Central to the appeal is the effect of the Court of Appeal’s decision Williams v Police.28 In 2012 Mr Williams had been convicted of sexual connection with a vulnerable 14 year old girl.29 He was sentenced to two and a half years’ imprisonment and was recalled from parole after he tried to make contact with the victim.30
[17] The subsequent offending that led to Mr Williams’ appeal arose in 2022 and involved another 14 year old girl employed at the same workplace as him. Over a period of a few days Mr Williams, then aged 40, sent the victim a series of messages over Facebook which rapidly became sexual and inappropriate. He eventually sent a series of nude and sexually inappropriate photos of himself.31 When spoken to by Police he admitted the complainant was only 14 and that the photos he sent her were indecent. He was charged with the offence of exposing a young person to indecent material under s 124A of the Crimes Act 1961, an offence punishable by imprisonment of up to three years. It is also a qualifying offence for registration on the Child Sex Offender Register.32
[18] The issue identified by the Court of Appeal was whether the impact of registration is a relevant factor to be taken into account when deciding whether to impose a custodial sentence.33 He argued the punitive effect of registration should be treated as a factor informing not only the length of sentence but also the choice between custodial and non-custodial sentences.34
[19] After addressing the statutory scheme and previous authorities the Court identified a number of general principles. Most important to the present appeal is the conclusion that judicial discretion to take into account registration in sentencing— both in terms of the type of sentence and its length—is a limited one.35 The Court
28 Williams v R, above n 2.
29 At [11].
30 At [12].
31 At [7]–[8].
32 At [9]–[10].
33 At [22(a)].
34 At [3].
35 At [98(b)].
considered the effects of registration will only be taken into account in “exceptional cases”:36
(c)Generally speaking, it would be contrary to Parliament’s clear intention were registration to result in reduced sentences for child sex offenders in anything other than exceptional cases. That approach applies to both the issue of length of sentence where registration should not generally be regarded as warranting a discrete discount and also to the type of sentence.
(d)Exceptional circumstances justifying an allowance for the effects of registration will exist if registration is exceptional in its effects on the particular offender and will render an otherwise appropriate sentence unusually or disproportionately severe.
(e)It follows that the operation of the Act will seldom result in a sentence otherwise within range being manifestly excessive.
(f)It also follows that it would be inconsistent with the legislative purpose and hence wrong for a sentencing court to reduce a prison sentence on account of registration so as to bring it within the range of home detention. That would be to subvert the distinction drawn in the Act for the purposes of registration between child sex offending that warrants a prison sentence and offending that does not.
(g)For the avoidance of doubt, we confirm that where the length of a prison sentence arrived at without regard to the impact of registration is under the home detention threshold, then in deciding between prison and home detention, the availability of a s 9 registration order may be taken into account in determining whether home detention will sufficiently meet the need for community protection. Home detention should not however be imposed for the purpose of avoiding registration.
Mr Williams’ reporting obligations under the Act
[20] A central focus of Mr De Groot’s argument was the penal effect of registration and the onerous obligations it imposes on the appellant.
[21] A reporting obligation is the primary duty imposed by the Act.37 N’s qualifying offence is prescribed in sch 2 of the Act as a class 3 offence. This is the most serious category of qualifying offences and means he has a lifetime reporting obligation.38 And as Mr De Groot pointed out, a breach of the reporting obligation is itself a criminal offence.39
36 At [98(c)–(g)].
37 At [34].
38 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 35(1)(a).
39 Sections 39 and 40.
[22] Within 72 hours of being released from custody or being made subject to a s 9 registration order, an offender must make what is called an “initial report” of all relevant personal information to the Commissioner, which includes the offender’s place of residence, details of all children residing there, and employment details.40 Starting in the first year after the initial report, the offender must make a periodic report in each year thereafter.41 The purpose of the periodic reports is to confirm that the information in the previous report remains correct.42 Any change to the personal information, other than a change of address, must be reported to the Commissioner within 72 hours of the change occurring.43 In the case of a change of address, that must be notified to the Commissioner at least 48 hours before the change occurs.44
[23] Registration has been recognised to have a “punitive effect” because while its primary purpose is protection, it will “undoubtedly restrict in significant ways the freedom of offenders who have served their sentences”.45 However, in Williams the Court of Appeal described the reporting obligation as “largely an information sharing exercise”, and “far less intrusive” than the intense monitoring and restrictions on liberty that arise under an extended supervision order.46 Subject to only one exception, an offender is not required to seek the Commissioner’s permission and is instead required to keep the Commissioner informed of certain matters.47 This led the Court to say that although the restrictions arising from registration are not insignificant, they are limited.48
The appeal
[24] Mr de Groot submits the appellant’s sexual offending is sufficiently minor that he should not be on the Register, and it is by a strained confluence of circumstances that he has found himself on it.
40 Section 16.
41 Sections 18 and 19.
42 Section 18(3).
43 Section 20(1)(b).
44 Section 20(1)(a).
45 Bell v R [2017] NZCA 90 at [26] and see also D (SC31/2019) v New Zealand Police [2021] NZSC 2, [2023] 1 NZLR 213 at [59] per Winkelmann CJ and O’Regan J.
46 Williams, above n 2 at [89].
47 At [89]. The only exception is that prior approval is required before an offender is able to change their name.
48 At [90].
[25] The arbitrariness of registration is said to have arisen from the delays in the matter coming on for sentencing. Mr de Groot emphasised the 18 month period after the offending during which Police had informally suggested no charges were likely to be laid. When the appellant was finally charged, he was already subject to separate criminal proceedings arising from the Levin based violence. It was this unfortunate coincidence which resulted in the charges of sexual connection coming on for sentence in conjunction with the violence charges. Had the sexual charges proceeded alone the appellant would have been sentenced to home detention. The non-custodial sentence would have meant the Judge’s discretion to decline to order registration would have been engaged. Mr de Groot argues Judge Hobbs’ comment that “it is not inevitable” he would have declined to order registration indicates the outcome was not a foregone conclusion.49
[26] Confronting the very narrow sentencing discretion recognised in Williams, Mr de Groot argued the requirement of exceptional circumstances was met in the present case. The appellant is now the subject of a life-time mandatory penalty where the Crown was not agitating for registration before the District Court. There was “unusually low culpability” involved in the registrable offending, where the complainant had “actively sought to present herself as over age”, and the guilty plea was based solely on the difficulty the appellant faced in order to establish the reverse onus defence of reasonable inquiry into the complainant’s age. The factors in s 9(3) of the Act and the evidence of Dr Lehany, a clinical psychologist who assessed the appellant at a low-risk of further child sexual offending, did not support registration. It is “highly unlikely” the appellant would have been sentenced to imprisonment if he was for sentence on the sexual charges alone. Finally, registration was “primarily the consequence of factors unconnected from the purposes and principles” of the Child Sex Offender Register.
Consideration
[27] I do not consider there was any error in the approach of the Judge. The sentence of imprisonment was the appropriate outcome in the circumstances. And even if a non-
49 Sentencing notes, above n 1, at [57].
custodial sentence had been imposed on appeal, I would have made a registration order under s 9(2) of the Act.
[28] First, the present case is materially different from Williams. Mr Williams was charged with an offence under s 124A of the Crimes Act of exposing a young person to indecent material. The maximum penalty was three-years’ imprisonment. The offending involved sending a 14 year old victim a series of semi-explicit photographs in the course of one evening. The material while indecent was far from the worst of its kind. It is unsurprising then that the penal effect of registration as part of the sentencing exercise was to the fore. As the gravity of the offending was toward the lower end of qualifying offences under the Act the impact of registration was more pronounced.
[29] In contrast, in the present case the appellant had unprotected sexual intercourse with a child on more than one occasion in circumstances where he made no reasonable enquiry to ascertain her age. The maximum penalty for the offence is 10 years’ imprisonment. No issue is taken on appeal with the starting point adopted in the District Court of two and a half years’ imprisonment. The difference in age between the appellant and the victim was an obvious aggravating factor.
[30] Ultimately dispositive of the appeal is that the current offending occurred six years after the defendant had committed a series of serious sexual offences against a seven year old child. As a 14 year old he received seven notations in the Youth Court for unlawful sexual connection and doing an indecent act on a child under 12 years of age.50 And as the Judge noted, the probation report found the proposed home detention address was unsuitable for two reasons, including that one of the victims lived in the same town. N had in the past breached community based sentences. This included four convictions for breaching intensive supervision and two for breaching community detention. The appellant has amassed 39 criminal convictions since February 2020, including convictions for assault, wounding with intent to injure and male assaults female. The pattern of violence—involving women and children—cannot be ignored. In light of these facts a non-custodial sentence for repeat serious sexual offending
50 The psychiatric report of Dr Lehany provided by the appellant notes that: “At the age of fourteen [the appellant] was accused of raping a seven year old cousin. He was ultimately sentenced to a residential programme, after pleading guilty when it ultimately went to trial in 2015.”
would have been inappropriate even if the appellant had come up for sentence on the charges of sexual connection on their own.
[31] For these reasons the appellant has failed to establish the effects of registration on him are exceptional and will render an otherwise appropriate sentence unusually or disproportionately severe.
[32] Second, I do not see anything arbitrary about the circumstances in which the sentence was imposed or from the fact that registration followed automatically from the custodial sentence. For the reasons set out above had the appellant appeared for sentence on the charges of sexual connection in isolation I do not consider a sentence of home detention was the least restrictive outcome appropriate in the circumstances.51 Regardless, after committing the offences in issue in this appeal N went on to commit serious acts of violence against another female victim. That he came up for sentence on 11 charges, including sexual offending and domestic violence, was due to his continuing anti-social behaviour over a 15 month period. I am therefore unable to accept Mr de Groot’s description of the circumstances leading to the custodial sentence, and the sentence itself, as “arbitrary”.
[33] Third, now that N’s sentence has been served the appeal is essentially moot.52 Mr de Groot invited the Court to convict and discharge the appellant in the circumstances as the only apparent avenue to the imposition of a non-custodial sentence. But the sole purpose of such an inappropriately lenient sentence would be to avoid registration. I consider the Court of Appeal’s comments in Williams—set out above at [19(f) and (g)]—clearly tells against such an approach.
[34] Even if a non-custodial sentence had been open, I consider registration under s 9(2) and (3) would have been the appropriate outcome. In reaching this conclusion I note that the psychiatrist, Dr Lehany, believed it was “unlikely” that the appellant
51 Sentencing Act, s 8(g).
52 See Williams, above n 2 at [67], where the Court of Appeal addressed the appellant’s argument that it was appropriate on appeal to convict and discharge the appellant given Mr Williams had completed his sentence. The Court went on to observe: “In light of the acknowledgment that registration was appropriate, we assume it is contemplated that the conviction and discharge would be accompanied by a s 9 [registration] order. We doubt very much whether there would be jurisdiction to do that, but for reasons we will go on to explain, it has proved unnecessary for us to reach a concluded view on the point.”
posed a risk of future child sex-offending. This appears to have been based at least in part on the appellant’s self-reported sexual preferences. However, as the respondent submitted, the Court is required to make its own assessment taking account of the factors listed in s 9(3) of the Act. Given the appellant has twice committed serious sexual offences against children in the space of six years, I am satisfied he poses “a risk to the sexual safety of 1 or more children or children generally”.53
[35] Finally, as the Court of Appeal observed in Williams, while the reporting obligations are not insignificant they are limited, and generally involve an information sharing requirement. The appellant may find reporting compliance difficult but after 15 years he may also apply to the District Court under s 38 to have his obligations indefinitely suspended. He will be eligible provided he is not on parole or subject to any post-sentence orders. Notably, lack of compliance with disclosure obligations is not a factor affecting eligibility to apply under s 38(2) of the Act, or a mandatory consideration for the Court when assessing risk under s 38(5).
Anonymisation
[36] On behalf of the appellant Mr de Groot submitted that “following the approach of the Supreme Court on the leave decision” in W v New Zealand Police, this Court ought to anonymise its judgment.54 In the leave decision Mr de Groot refers to, the Supreme Court followed its approach in D v New Zealand Police.55 There the appellant’s name was anonymised because the contents of the Register are confidential and a majority of the Court considered naming an appellant in judgments challenging registration could discourage appeals.56 However the Court also had evidence that publication of the appellant’s name in connection with the Register had already had a “significant adverse impact on the appellant”.57 The appellant had his lost employment
53 Applying the two-step process to the s 9 discretion identified by the Supreme Court in D (SC31/2019) v New Zealand Police, above n 45 at [104] per Winkelmann CJ and O’Regan J and [260] per Glazebrook J.
54 Referring to the leave decision in W (SC 17/2025) v New Zealand Police [2025] NZSC 46.
55 D (SC 31/2019) v New Zealand Police [2021] NZSC 2; [2021] 1 NZLR 213.
56 At [142] per Winkelmann CJ and O’Regan J. The other judges concurred, but William Young J considered the basis for anonymisation was much narrower.
57 At [137].
as a result of publication of personal details set out in the Court of Appeal’s judgment and it had also affected his social network.58
[37] In the present case the appellant has not provided any evidence to support the request for anonymisation. I also note the comments of William Young J in D v Police, where he said that while he did not oppose anonymisation in that case, he “did not accept that there should be anything approaching a presumption that anonymisation or suppression is appropriate in cases in which registration orders are challenged.”59 While the Register is confidential, the making of registration orders is not.60 Registration orders are made in open court during sentencing, meaning it is open to media to report on them at the time.
[38] Given the views of the majority of the Supreme Court in D and that Court’s subsequent approval of the approach to anonymisation in W, I do not consider it is open to me to decline the appellant’s request for anonymisation despite the lack of evidence to support the outcome.
Conclusion and result
[39]For the foregoing reasons, the appeal against sentence is dismissed.
Isac J
Solicitors:
Crown Solicitor, Wellington for Respondent
58 At [137].
59 At [314].
60 At [315], per William Young J.
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