P v The King

[2023] NZHC 566

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF ANY COMPLAINANTS/PERSONS UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 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-2023-404-565

[2023] NZHC 566

BETWEEN

P

Appellant

AND

THE KING

Respondent

Hearing:

5 December 2023

Appearances:

T M Saseve for Appellant

B N Kirkpatrick and A F Afzaly for Respondent

Judgment:

14 December 2023

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 14 December 2023 at 2.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Saseve, Auckland

Meredith Connell, Auckland

P v R [2023] NZHC 566 [14 December 2023]

[1]    On 24 October 2023, the appellant (P) was sentenced, having pleaded guilty to one representative charge of assaulting a child, one representative charge of assault on a  person  in  a  family  relationship,  and  one  charge  of  indecent  assault.1  Judge K Davenport KC entered a conviction and sentenced P to six months’ home detention.2

[2]    This is an appeal against the Judge’s refusal to discharge the appellant without conviction. Counsel for the appellant submits that the Judge was in error or imposed a manifestly excessive sentence. The allegation is that the Judge failed to take into account all relevant mitigating factors relating to the offending and his personal circumstances. The mitigating factors were:

(a)full cooperation with the police;

(b)guilty pleas;

(c)undertaking and completing a Man Alive programme designed to improve his parenting and anger management skills;

(d)his assurance that he would use best endeavours to find, enrol in and complete an appropriate programme that would address any sexual behaviour/deviancy issues to ensure no repeat offending;

(e)P accepted his offending and apologised to those affected, and the bail conditions precluded contact with his adopted daughters;

(f)his long-term marriage with his wife and the mother of the two affected children has ended, so he has had no contact with the complainants; and

(g)the appellant is of good character with no previous convictions and is supported by favourable references.

1      The appellant’s name has been anonymised in this judgment so as not to undermine the statutory suppression of the complainants pursuant to ss 203 and 204 of the Criminal Procedure Act 2011. See H v R [2019] NZSC 69, [2019] 1 NZLR 675 at [54]–[55].

2      R v [P] [2023] NZDC 23287.

[3]    In addition, counsel for the appellant alleges that the Judge erred in failing to give sufficient weight to the adverse consequences of a conviction relative to the offending. In making that comparison, counsel says the Judge overstated the significance of the offending and underestimated the potential consequences that convictions would have for his employment.

[4]    If a discharge without conviction is not granted, then the appellant submits that the sentence of six months’ home detention is manifestly excessive and that he should have been sentenced to a term of supervision or at most to community work.

Summary of the offending

[5]    P and his then wife were the adoptive parents of Y and Z. They cared for them between October 2019 and August 2021, and January 2020 and August 2021 respectively. During that time, Y was between five and six years old and Z was between 14 and 16 years old.

[6]    In terms of the representative charge for assaulting a child, in February 2020, Y was crying at night and P entered her room, yelling at her to go to sleep. He forcefully held her down using the bedcovers. P assaulted Y on several other occasions, hitting her on her bottom, legs and head with an open hand, kicking her, dragging her by the arms and pulling her hair.

[7]    In respect of the representative charge of assault on a person in a family relationship, in one instance P struck Z on her forehead when he believed she was talking to boys at school. On two or three other occasions, he assaulted Z by forcibly shaking her or pulling her hair.

[8]    On the indecent assault charge, P approached Z while she was vacuuming the house and hugged her. He then slowly moved his hands down to her bottom, over her clothes, and pulled her closer to him. Z moved back and pulled his hands away, telling him to stop.

Legal principles

[9]    The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 Generally, the sentence must be shown to be manifestly excessive or wrong in principle.4 The focus is on the end sentence imposed, rather than the process by which it is reached.5

[10]   The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of whether the starting point was too high given the facts, or of incorrect discounts.6

[11]   Appellate courts do not indulge in mere tinkering with a sentence.7 The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

[12]   An appeal against a refusal to grant a discharge without conviction is an appeal against conviction and sentence.8 The appellant must establish that a miscarriage of justice has occurred, either because the sentencing judge made a material error in entering a conviction or as a result of an error by the judge in applying the principles found in s 107 of the Sentencing Act 2002.9 The appeal proceeds by way of rehearing.10

[13]   It is settled that a court considering a discharge under s 106 of the  Sentencing Act should follow a three-step process addressing the guidance given in  s 107. These steps are:11

3      Criminal Procedure Act 2011, s 250.

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].

5 At [36].

6 At [32].

7      R v Boyd (2004) 21 CRNZ 169 at [38].

8      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [6]–[16].

9 At [12].

10     Doyle v R [2022] NZCA 307 at [15]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

11     Prasad v R [2018] NZCA 537 at [11].

(a)identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;

(b)identification of the direct and indirect consequences of conviction; and

(c)determination of whether those consequences are “out of all proportion” to the gravity of the offence.

[14]   Only if that threshold is met can the Court move to consider the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequences will happen.12

[15]    One of the mandatory principles of sentencing is that the Judge “must impose the least restrictive outcome that is appropriate in the circumstances”.13 The hierarchy of sentences and orders available are set out in s 10A. A sentence of home detention is the second most restrictive sentence, only less restrictive than a sentence of imprisonment in the hierarchy of sentences.

[16]   Whether to impose a less restrictive sentence is a discretionary matter for the Judge:14

While it was available to the Judge to impose a sentence lower in the hierarchy (for example community work), it was well within his discretion to place considerable weight on factors such as denunciation and deterrence in a context involving violence to children.

… But even so, it cannot be seriously suggested that home detention is always going to be excessive in case involving child abuse and a person of otherwise good character. It is essentially a discretionary matter for the sentencing judge in light of all the background facts. In this case there is no suggestion that the judge did not consider them and, in any event, a short period of home detention is not excessive.

12     At [11], referencing DC (CA47/2013) v R [2013] NZCA 255 at [43].

13     Sentencing Act 2002, s 8(g).

14     L v Police [2017] NZHC 1463 at [19]–[20], cited with approval in Lynch v Police [2022] NZHC 1448 at [37].

[17]   There is a general practice of calculating the sentence of home detention by halving the end point of imprisonment that would have been imposed. However, in  R v Bisschop the Court of Appeal said that this ignores the reality that imprisonment is more onerous than home detention and that the “proper approach … is an evaluative assessment of all the circumstances”.15

District Court decision

[18]   The sentencing Judge began by outlining the offending, including the explanations that P gave for his conduct. P’s explanation for his assaults against Y was that she was needy and did not behave. In respect of the assaults against Z, one of them involved an incident where P was concerned about her behaviour with boys at school. He also admitted to disciplining the two girls by slapping them and pulling their hair. P acknowledges that this form of discipline is too harsh and unacceptable for children. P identified anger issues, work stresses, poor parenting skills, and issues with his former wife as all contributing to the offending.

[19]   During her analysis, the Judge addressed each of the three questions for assessing whether it was appropriate to grant a discharge under s 106:

(a)The Judge considered that the assaults on the children were moderate rather than low in terms of gravity.16 The sexual offending was at the lower end of offending of that type.17

(b)The Judge outlined the direct or indirect consequences of the conviction as identified by P. The Judge considered the potential consequence of the conviction in relation to his job. In particular, she considered the allegation that he might lose his job and/or that his Certificate of Approval (COA) might be revoked. The Judge weighed the available evidence on that issue.18 Overall, the Judge assessed that there was a reasonably low risk of losing the COA and thus employment. In part,

15     R v Bisschop [2008] NZCA 229 at [18]–[19].

16     R v [P], above n 2, at [22].

17 At [26].

18     At [23]–[25].

this was because his employer would write a letter of support and try to ensure that P kept his COA.19

(c)In any event, the Judge determined that the consequences were not “out of all proportion” to the gravity of the offending. There are always implications from convictions and a reasonably low risk of losing the COA, and thus employment, did not outweigh the seriousness of the offending.20

[20]   In terms of the mitigating factors identified in the appellant’s submissions, these were expressly considered by the Judge:

(a)While there is no express reference to full cooperation with the police, a 30 per cent discount was given for the guilty plea and previous good character. The summary of facts refers to the admissions to the police, the judgment contains detailed references to facts from the summary, so there is no reason to believe that this aspect was disregarded.

(b)Guilty pleas were acknowledged and given a 30 per cent discount, along with good character.21

(c)The sentencing Judge referred to the appellant’s enrolment and near completion of the Man Alive programme.22

(d)After reference to the Man Alive programme, the sentencing Judge recorded P’s commitment to undertaking a course that would address his sexual behaviour.23

(e)The sentencing Judge referred to P’s letters of apology and the fact that he now lives alone, having separated from his former wife.24 The Judge

19 At [24].

20     At [26]–[28].

21 At [29].

22 At [17].

23 At [17].

24     At [4] and [12].

also referred to the pre-sentence report, and approved the terms and conditions set out in the Appendix,25 which include the no unapproved victim contact condition.

(f)The sentencing notes specifically awarded a discount for his previous good character and refer to the fact that he has no previous convictions and was supported by favourable references.26

[21]   Judge Davenport adopted a global starting point of 18 months’ imprisonment, based on a starting point of 14 months for the indecent assault charge and an uplift of four months for the two other assault charges. Taking into account a 30 per cent discount for the guilty plea and for previous good character, the Judge said that this reduced to an end sentence of 13 months’ imprisonment,27 which was converted to a sentence of six months’ home detention.

Analysis

[22]   Given the above analysis of the decision by the sentencing Judge, there is no evidential basis for believing that the Judge failed to take into account all relevant mitigating factors relating to the offending, or that she failed to consider the appellant’s personal circumstances.

[23]   The indecent assault charge was assessed as being at the low end, but it constituted more than just moving his hands onto Z’s bottom. He pulled Z towards him, causing her to move back, pull his hands away and tell him to stop. In any event, the other charges were assessed as being at the medium level of gravity for their type. These involved slapping, kicking and dragging by the hair. The victim impact statements emphasise the material adverse impact that these assaults had on the children and his former wife, even if the lasting effects are psychological rather than physical.

25 At [30].

26     At [9], [13], [14] and [24].

27     A 30 per cent discount from the 18-month starting point equals 12.6 months.

[24]   I also cannot identify any mistakes in analysing the risk that P may lose his COA and/or employment. The sentencing Judge accurately recorded that it was not “a guaranteed thing” that he would lose his COA, given the support from his employer.28 But it was identified as a real and appreciable risk. Accordingly, the Court considered that possible outcome when assessing whether those consequences would be out of all proportion to the gravity of the offending.29 In my view, the assessment of the Judge is justified, and is distinguishable from the situation in Phipps v Police relied upon by the appellant.30

[25]   In Phipps, the appellant wife and the victim husband had been married  for  16 years. The husband had a previous conviction for assaulting his wife, and at times had been verbally and physically abusive towards her. This included one incident where the husband had thrown a cup of hot coffee over the wife’s face and neck. The particular offending in question, however, involved conduct by the wife on the evening of 20 September 2014, after the two had been arguing. During a period of arguing, the husband had turned on the jug to make a cup of coffee. The wife, in a fit of anger, grabbed the jug and threw it at her husband. The jug struck the victim’s chest area and right arm, resulting in burns. The appellant also threw a ceramic sugar jar and a kitchen knife set. One of the knives came out of the set and cut the victim’s left ear, causing it to bleed. Police were called and the wife immediately admitted what she had done, saying the victim had antagonised her to the point where she had lost it. The appellant suffered from borderline personality disorder and had been receiving treatment. The evidence of the psychologist was that this was linked to her offending by impairing her capacity to regulate her emotional state. The wife was a security officer and patrol supervisor who risked being denied a COA and might lose her job in the event of a conviction being entered.

[26]   In Phipps, Brewer J considered that the gravity of the offending could be characterised as low rather than moderate, taking into account the appellant’s personal circumstances. The assault was not sustained but occurred in a flash of anger against a background of a relationship spanning 16 years characterised by numerous incidents

28 At [25].

29 At [27].

30     Phipps v Police [2015] NZHC 614.

of physical violence and verbal abuse by the victim against the appellant. There was no suggested likelihood of a recurrence of the offending, and the sentencing Judge had not given sufficient weight to her psychological condition lessening her ability to control herself. On the issue of potential consequences of a conviction, Brewer J held that the sentencing Judge was correct to find a real possibility that the appellant would be denied a COA and lose her job. The personal circumstances of the seriousness of that risk needed to take into account not only her age at 56, but also her psychological disorder and potential self-harm or suicide. Weighing all those factors together, Brewer J considered that the need for deterrence and denunciation was low, and the appellant’s psychological condition meant that the consequences were more serious than just having to apply for a waiver of disqualification, with the possibility of not getting it. On that basis, the High Court set aside the conviction and granted a discharge under s 106.31

[27]Phipps is distinguishable from the present facts for a number of reasons:

(a)the conduct in this case was not one-off, and instead involved multiple occasions of offending by the appellant over a period of time against two different children;

(b)the children in this case were vulnerable dependents, which contrasts starkly with the victim in Phipps himself being an abuser and repeatedly assaulting his wife;

(c)there is no allegation that P was impacted by psychological conditions making it difficult for him to control his behaviour; and

(d)this is a situation of just having to apply for a waiver of disqualification, with the possibility of not getting it.

[28]   Overall, I am satisfied that no miscarriage of justice has occurred by virtue of a material error by the Judge in entering convictions. The Judge correctly applied the s 107 Sentencing Act principles.

31     At [27]–[28].

[29]   Counsel for the appellant relies on the same mitigating factors relating to the offending and the appellant’s personal circumstances already considered to further submit that the sentence of six months’ home detention is manifestly excessive.

[30]   Counsel for the respondent contends that the end sentence is appropriate and within range, taking into account analogous cases for offending of the three different types:

(a)In R v H,32 the appellant had driven his 16-year-old cousin to his brother’s house, where he took her into a bedroom and began to touch her. He attempted to kiss her and remove her pants, eventually pushing her down on to a bed and lying on top of her. The cousin resisted and escaped. The Court of Appeal found that the appropriate starting point was in the range of 12–18 months’ imprisonment.33 This offending is less serious than in H, given that physical force was not used in this case. However, there are aggravating factors of emotional harm, vulnerability of the complainant and abuse of trust.

(b)In respect of the charge  of  assaulting  a  child,  starting  points  of  six months’ imprisonment were adopted in V v Police34 and Kawhena v Police.35 Both involved an isolated assault on a child victim with a hand on the face and bottom. In both of these cases, the end sentence of home detention was imposed on appeal.

(c)For the other charge of assault on a person in a family relationship, a starting point of 12  months’  imprisonment  was  adopted  in  Douglas v R.36 Douglas involved breach of a protection order, whereas this case does not. On the other hand, in Douglas the victim was an adult rather than a vulnerable child in a relationship of trust, and the incident was isolated.

32     R v H CA221/05, 17 October 2005.

33 At [13].

34     V v Police [2015] NZHC 2284 at [16].

35     Kawhena v Police [2014] NZHC 908 at [19].

36     Douglas v R [2021] NZHC 1823 at [4].

[31]   Based on the above cases, I consider that a starting point of 14 months’ imprisonment for the indecent assault charge was high, but on the other hand I would have imposed a higher uplift for the other assault charges, taking into account the totality principle. Overall, I am not satisfied that the end sentence is manifestly excessive or wrong in principle. In selecting a sentence of home detention (which was recommended in the pre-sentence report), it was well within the Judge’s discretion to place considerable weight on factors such as denunciation and deterrence in a context involving violence to children.37

Result

[32]Accordingly, the appeal is dismissed.

O’Gorman J

37     L v Police, above n 14, at [19]–[20]; and Lynch v New Zealand Police, above n 14, at [37]. See also

V v Police, above n 34; and Kawhena v Police, above n 35.