P v Police - [2025] NZHC 3221

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-454

[2025] NZHC 3221

BETWEEN
P

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 September 2025

Counsel:

S Brickell for appellant

S K Jocelyn for respondent

Judgment:

28 October 2025

JUDGMENT OF JOHNSTONE J

(appeal against sentence)

This judgment was delivered by me on 28 October 2025 at 3.30 pm

Registrar/Deputy Registrar

Solicitors:
Kayes Fletcher Walker, Auckland

P v POLICE [2025] NZHC [3221] [28 October 2025]

[1] P was sentenced in the District Court at Manukau, on a charge of doing an indecent act on a person under the age of 16 years1 and a charge of indecent assault2, to serve 22 months’ imprisonment. He appeals against that sentence, saying that the starting point was too high, and that further credit should be given for his mitigating personal circumstances.

[2] Assessing the substantive merit of an appeal requires consideration whether, for any reason, there was a sentencing error such that a different sentence should be imposed.3 It must be shown that the sentence is manifestly excessive or wrong in principle, or that there are exceptional circumstances requiring the correction of an in-range sentence.4

P’s offending

[3] In 2021 or 2022, when P’s daughter was 15, they lived at separate addresses on the same street in greater Auckland. Together in her bedroom, she complained of having sore legs after sports training. P had her lie down, and starting to massage her legs up towards her buttocks. P had her take her leggings off, so that she wore only underwear on her lower half. P massaged her buttocks and between her thighs, close to her vagina. His actions were indecent. Feeling uncomfortable, P’s daughter asked him to stop. P did not stop. She put her leggings back on. P continued massaging her legs and eventually stopped.

[4] Sometime later, when P may have turned 16, P observed that his daughter was walking uncomfortably. He offered to massage her. She lay, face down, on the lounge floor. P positioned himself between her legs, and massaged them up to her buttocks. P had her take her leggings off. P massaged her inner thighs and the exterior of her vagina on top of her underwear. His daughter was too scared to complain. When P

1      Crimes Act 1961, s 134(3) (as it read prior to May 2025). Maximum penalty: seven years' imprisonment.
2      Crimes Act 1961, s 135. Maximum penalty: seven years’ imprisonment. [The charging document was amended on the day it was filed, to allege indecent assault of the then 16-year-old complainant. The cited offence provision was s 134(3), but the offence alleged was that under   s 135. Nothing of significance turns on this.]
3      Criminal Procedure Act 2011, s 250.
4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading P v Police

Details

AGLC: P v Police [2025] NZHC 3221
Case: [2025] NZHC 3221
Decision Date: 28 October 2025

CaseChat Overview and Summary

The appellant, P, was convicted in the District Court of two charges of indecent assault and one charge of indecent act on a person under 16 years. P appeals the sentence of 22 months' imprisonment, arguing that the starting point was too high and that further credit should be given for his personal circumstances. The appeal was heard in the High Court of New Zealand, Auckland Registry, where the Honourable Justice Johnstone delivered judgment. The court was required to determine whether the starting point for sentencing was too high and whether there were exceptional circumstances that required a reduction in the sentence to account for P's health difficulties.

The court found that the starting point of 24 months was at the very top of the range that might have been justified. While the court found that the offending was more serious than that in Wild v R, it was comparable to that in Masei v R. The court found that the sentence was within range, but that the starting point was at the very top of that range. The court found that the appellant had not demonstrated a commitment to rehabilitation, and that the judge was not required to give further credit for remorse. However, the court found that the appellant's health difficulties required a discrete reduction, as they made the prison sentence disproportionately severe. The court found that a 10% reduction was appropriate, bringing the sentence to 19 and a half months' imprisonment.

The appeal was allowed, and the sentences of 22 months' imprisonment were varied to become sentences of 19 and a half months' imprisonment. The direction as to special release conditions was unaffected.

Orders