P v Police
[2025] NZHC 3221
•28 October 2025
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 [30]–[36], Te Aho v R [2013] NZCA
47 at [30].
said to turn over, she said she was going to put her leggings back on because it didn’t feel right. Then she left, going to another room.
P’s circumstances
[5] Now aged 41, P has one previous conviction, for an offence of unlawful sexual connection with an adult female, committed in 2017. He was sentenced for that offence to serve 12 months’ home detention and 100 hours’ community work.
[6] He told the Probation Service’s report writer that he has fibromyalgia, with his symptoms worsening in recent years, through decreased mobility and increased pain.
The sentencing Judge’s decision
[7] Offering a sentence indication in August 2023, the sentencing Judge noted that the assaults were “perhaps ... at the lower end being over clothing”, with only brief touching of the genital area on the second occasion in the context of a “sports massage”. However, there were two separate incidents, involving a breach of trust and significant negative impact on P’s daughter and her mother. The Judge found a starting point of two years’ imprisonment to be the minimum that might be appropriate.
[8] The Judge then identified a three-month uplift to account for P’s relevant previous conviction, and indicated a 25 per cent reduction in light of P’s guilty plea, leaving the question of whether home detention might be substituted for later consideration, depending on whether P had accepted his responsibility in a restorative justice conference and completed a programme to address his risk of committing further sexual abuse.
[9] P did not accept the indication. However, following a change of counsel, P pleaded guilty and was sentenced in July 2025.
[10] In sentencing P, the Judge adopted his earlier remarks. Then turning to P’s potentially mitigating circumstances, the Judge found that P had not properly demonstrated a commitment to rehabilitation. P had engaged with
Korowai Tumanako, an accredited sexual violence prevention and intervention service, but had missed several appointments, and when attending had become loud and overbearing and was asked to leave. P did not attend the next residential weekend session, instead writing that an injury and the costs of travel and accommodation prevented his attendance. Also, the Judge declined to reduce the sentence for remorse, other than to the extent included in the reduction to be applied for P’s guilty plea. On the topic of the guilty plea reduction, the Judge reduced the previously indicated reduction by five per cent, stating that the guilty plea “was entered 11 months later”.
[11] The Judge thus arrived at a notional 22-month prison sentence. He declined to commute the sentence to one of home detention, noting there had been no restorative justice conference, that P had not completed the Korowai Tumanako programme, and that he could not be electronically monitored at his proposed home detention address. The Judge therefore imposed the sentence of 22 months’ imprisonment, directing compliance with 12 months of special release conditions.
Was the starting point too high?
[12] As both counsel recognise, there is no guideline judgment addressing the sentencing of indecent assault. Sentences imposed in comparable cases indicate that the Judge’s starting point was at the very top of the available range.
[13] In Wild v R, the Court of Appeal granted a sentence appeal where a starting point of two years and three months’ imprisonment was adopted in response to the commission of indecent acts against two young girls aged between nine and 12 years.5 The offending against the first victim, aged 12, occurred in 2012 and involved the appellant rubbing his clothed penis against her side, making lewd reference to his sexual desire, and hanging on when pushed and told to go away. The offending against the second victim involved touching on her thighs, breasts and stomach over her clothes, on two occasions during 2013 to 2015 when she was between nine and 12 years old. The Court assessed the offending as less serious than in R v M (CA387/2009), where a four-year-old had been the victim of opportunistic offending by her 19-year-old cousin, involving skin-to-skin contact between her
5 Wild v R [2019] NZCA.
genitalia and his hand, and between her hand and his penis, and a two-year starting point was adopted on appeal.6 In Wild, the Court concluded that a starting point of 18 months was appropriate.7
[14] In Masei v R, the Court of Appeal dismissed a sentence appeal where a starting point of 21 months’ imprisonment was adopted in response to the indecent assault of a 15-year-old student who had been billeted with the appellant.8 The appellant arranged to be alone with the student. He touched her all over her body and tried to remove her clothes. He touched her breasts over her pyjamas and put his hand down her pants, touching her genital area over her underwear. He rubbed her genital area in circular motions, using some pressure, despite the victim telling him to stop. The Court of Appeal agreed that “the general starting point for indecent assault of a person aged 15 years with the characteristics of Mr Masei’s offending is around 18 months’ imprisonment”.9 Further, it observed that the sentencing Judge correctly emphasised the particular breach of trust and vulnerability in the case. Overall, it found that the 21-month starting point “can be seen as stern, but not outside the range available”.10
[15] The offending in the present case is more serious than that in Wild. There were two episodes in the present case, rather than the three in Wild, but in the present case there was skin-to-skin contact, and on the second occasion P “massaged” his victim’s genitalia (over her underwear). The aggravating features of breach of trust and particular victim vulnerability do not appear to have been present in Wild.
[16] The seriousness of the offending in the present case is comparable to that in Masei. The offender’s conduct in Masei was perhaps more aggressive, but it was confined to a single episode. In both cases, there was rubbing of the victim’s genitalia over clothing for an extended period. Further, the aggravating factors of breach of trust and particular victim vulnerability feature, in my view, to a greater extent in the present case than in Masei given the father-daughter relationship. The ongoing impact upon the victim, given that relationship, can be expected to be greater.
6 At [17], citing R v M (CA387/2009) [2009] NZCA 456.
7 At [18].
8 Masei v R [2016] NZCA 481.
9 At [8].
10 At [9].
[17] While the 21-month starting point in Masei was “stern, but not outside the available range”,11 the 24-month starting point in the present case can be seen as the most punishing that might have been justifiable. Certainly, it could not have been higher, without being inconsistent with R v M (CA387/2009), where the offending was not repetitive and did not involve serious breach of trust, but involved skin-to-skin contact with both parties’ genitalia.
Was P entitled to further credit for personal mitigating factors?
[18] I do not accept Mr Brickell’s submission that the Judge erred by declining a discrete discount for P’s remorse and prospects of rehabilitation. As the Judge pointed out, P had not properly demonstrated a commitment to rehabilitation. In the context of his previous conviction for sexual offending, prospects of rehabilitation required to be demonstrated rather than assumed. And the Judge was entitled to find recently provided material, suggestive of remorse, to be unpersuasive when put against earlier comments made to a pre-sentence report writer: P had asserted he “went a bit too far”, and that blame for him being charged might lie with another family member.
[19] However, Mr Brickell is on more solid ground in his submission relating to P’s chronic health difficulties. P has fibromyalgia, a condition characterised by generalised pain, fatigue, muscle stiffness and insomnia. And he has irritable bowel syndrome, which gives rise to digestive discomfort, diarrhoea and constipation. He provided an affidavit prior to the sentencing, outlining the effect of these conditions upon him. The Judge referred to these conditions when making his sentencing remarks. However, the Judge neither reduced the prison sentence being imposed, nor stated why the sentence would not be reduced, so as to account for them.
[20] In pursuing this appeal, P sought leave to file further affidavits: one of his own, and another of his mother. They provide an update on the effect upon P of his imprisonment. To this extent, the affidavits are fresh and relevant, and Ms Jocelyn for the police responsibly does not oppose them being adduced. I grant leave, and will treat the affidavits as admissible insofar as they are fresh. On review of that material, while it appears there were initial difficulties in establishing an institutional awareness
11 At [9].
of his capabilities within the prison system which have been overcome, I consider it largely to confirm that which might have been predicted: that P’s experience of prison life is harder for him than for most prisoners.
[21] The question, then, is whether a discrete reduction in the Judge’s starting point, to account for P’s chronic health difficulties, was required.
[22] In Whiteford v R, the Court of Appeal granted a sentence appeal, applying a discrete 10 per cent reduction because the effect of the appellant’s chronic colitis was such as to make his prison sentence disproportionately severe.12 Section 8(h) of the Sentencing Act 2002 requires sentencing Judges to take such disproportionate severity into account. However, in Whiteford, the Court observed that the principle:13
… must be cautiously applied to ensure ill health is not a licence to avoid responsibility for offending. A relevant question is whether the ill health is able to be managed within the prison to ensure the sentence is not manifestly unjust.
[23] The Court settled upon a 10 per cent reduction because: confinement in prison exacerbated the appellant’s condition; the appellant had suffered embarrassment upon having to self-administer rectal treatment in a shared cell, leading to infrequent medication and increased symptomology; and there had been delays in accessing internal medical attention and external medical specialists.14 The Court found the appellant’s presentation to be “quite unlike most prisoners who may suffer chronic medical or psychological conditions”.15
[24] I am persuaded that the challenges presented by P’s conditions and the need to treat those conditions within a prison environment make his prison sentence disproportionately severe, compared to sentences being served by other prisoners. A discrete reduction was required, of up to 10 per cent.
12 Whiteford v R [2020] NZCA 130.
13 At [37].
14 At [39].
15 At [40].
Assessment overall
[25] Had a further 10 per cent reduction been applied to the Judge’s starting point, the sentence would have been calculated at around 19 and half months’ imprisonment. A sentence appeal against a 22-month prison sentence would not ordinarily be granted in circumstances where a 20-month sentence would have been within range.
[26] However, in the present case, two factors combine to require that P’s appeal be granted:
(a)The starting point adopted was, as stated above, the very highest that might have been justified.
(b)The impact of P’s health difficulties upon the Judge’s sentencing approach was not stated.
[27] Since, under s 8(h), P’s health difficulties required to be taken into account, and had they been they would have justified a discrete reduction, P’s appeal should be granted for the purpose of regularising the sentencing process.
Result
[28] P’s appeal is allowed. The sentences of 22 months’ imprisonment are varied to become sentences of 19 and a half months’ imprisonment. The Judge’s direction as to special release conditions is unaffected.
Johnstone J
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