Pauling v R
[2019] NZHC 1929
•8 August 2019
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2019-443-16
[2019] NZHC 1929
BETWEEN WAYNE GIBSON PAULING
Appellant
AND
THE QUEEN
Respondent
Hearing: 30 July 2019 Appearances:
N P Bourke for the Appellant G N Milne for the Respondent
Judgment:
8 August 2019
Reissued:
21 July 2020
JUDGMENT OF CULL J
[1] Mr Pauling appeals his sentence imposed by the District Court of two years six months’ imprisonment,1 following his plea of guilty to 11 charges: five of indecency between males,2 and six of indecency between a man and a boy between 1976 and 1981.3
[2] The grounds of appeal are that the end sentence is manifestly excessive because the Judge erred in failing to apply sufficient discounts for mitigating factors and in not imposing home detention.
1 R v Pauling [2019] NZDC 12147.
2 Crimes Act 1961, ss 141(1)(a) and 141(1)(c). Maximum penalty five years’ imprisonment.
3 Sections 140(1)(a) and 140(1)(c). Maximum penalty 10 years’ imprisonment.
PAULING v R [2019] NZHC 1929 [8 August 2019]
[3] It is further submitted that the Judge made an error of law in considering he was entitled to consider home detention only if the end sentence was two years’ imprisonment or less, when this offending occurred before 1 October 2007 and before s 15A of the Sentencing Act 2002 took effect.
[4] The Crown opposes the appeal on the basis that the starting point adopted, and the discounts applied at sentencing, were appropriate. No mitigating factors relating to the appellant were overlooked. Accordingly, the sentence imposed was not manifestly excessive.
Background
Sentencing indication
[5] Mr Pauling pleaded guilty to the 11 charges following a sentencing indication in the District Court. The offending occurred between March 1976 and March 1981. All four male victims were known to Mr Pauling. The first victim was aged between six and nine when the offending occurred. The second, third and fourth victims were all sons of Mr Pauling’s friend; they were brothers, aged between six and 14 years old at the time of offending. The offending was summarised, and accepted by Mr Pauling, in the District Court sentencing decision as follows:4
[4] With respect to [the first child], he was staying with you along with his parents when you were about 20 years of age. During that stay you put one arm round him, your other hand down his pants and rubbed his penis and that went on for some time until he got up and left.
[5] With respect [to] the same child, there was a[n] … occasion that he and you and other[s] … attended. He was nine. He shared a room with you and during that night, you, being 24 by that stage, pulled him off his bed onto yours. You were naked, laid on top of him, pulled his pyjama pants down and he could feel your erect penis on his stomach. You then placed your penis between his legs and attempted to push it into his bottom. Eventually you let him go and he went back to his own bed.
[6] The next charge that you pleaded guilty to was between July 1977 and January 1980. The complainant was between seven and nine years of age then and you were between 21 and 22. The victim was at your workplace. You took him into the showers. You both undressed. You soaped him, rubbed your hands all over him including his penis and bottom and pushed your erect penis into his face while masturbating in the shower.
4 R v Pauling, above n 1.
[7]Those summaries relate to your offending against [the first child].
[8] The next offending you pleaded guilty to is one of the children whose mother was your friend. In 1977 he was nine, you were 20 and 21. You were boarding at that family’s home. You and others came in late one night and you laid on the couch where he was lying, put your hand into his pyjama pants and held his penis.
[9] Next in relation to that boy’s brother, between 1975 and 1976 this victim was between five and six years of age. He had bedwetting issues that you told him you could help with. That was basically a guise for you to sexually assault him. You put your hand down his pyjama pants, stroked his penis, took his hand, put it on your penis and had him masturbate you to the point of ejaculation.
[10] Next representative charge is 1977 with respect to that same child. He and his family had moved to the South Island. During 1978 you were babysitting. He was seven to eight years of age. You were 22 to 23. You again indicated you could help with bedwetting and a similar situation and indecent assault took place and only stopped when other children came into the house.
[11] 1979, the family moved again and you were present. The victim was nine. You were 24. The same situation occurred on the pretext of you helping him with his bedwetting and in addition, you performed oral sex on him.
[12] The final complainant, the last of the three brothers you offending against, was around 11. You took him on a camping trip. He woke to find your hand down his pants attempting to masturbate him. He pushed you away, swore at you and you asked if he could carry on but he woke fully and pushed you away. The same thing happened on another night on the same camping trip. When that boy was 13 or 14, there was a visit to you in Auckland and, supposedly joking around whether he could get an erection, you held him on the ground and masturbated him.
[6] At the sentencing indication, the Judge took a three years 10 months’ starting point. He held the facts of this offending are similar to that in R v Moloney, in which a teacher similarly offended against five victims over a six-year period, involving one occasion of violence caused by rage when one of the victims did not cooperate.5 The starting point in that case was four years’ imprisonment.
[7] The Judge considered a starting point for Mr Pauling should be two months lower than that in Moloney, to recognise that violence and rage were not present in this case, though noting that there was an application of force. This starting point was held to reflect the ongoing abuse, the lengthy period of time, the fact that the children were young, they were in their home environment, there was a predatory aspect to
5 R v Moloney HC Christchurch CRI-2003-009-13598, 1 August 2008.
what occurred given that they were often asleep when the offending occurred, and there was a clear breach of trust.
[8] The Judge then said an appropriate discount for a guilty plea would be 20 per cent. This would put the term at 37 months’ imprisonment, or three years one month. In all the circumstances, the Judge was prepared to round that down to 36 months, or three years’ imprisonment.
[9] The Judge then noted there would be deductions that would recognise the delay since the offending, the lack of reoffending within that period, and recognition, albeit minimal, of his “good character” considering that prior to this offending there had been no offending of a similar nature. The Judge indicated that there may be further discounts for remorse, a possible successful restorative justice outcome, and potentially his medical situation. The Judge said this could get Mr Pauling to the point where he may be within range of a home detention sentence, though he emphasised that reducing the three-year point to two years would require significant recognition, particularly of remorse.
[10] On this basis, Mr Pauling pleaded guilty to the above offences, and was sentenced on 25 June 2019.
Sentencing decision
[11] The Judge began with the starting point identified in the sentencing indication of three years 10 months’ imprisonment, for the reasons outlined above at [6], and then applied the 20 per cent discount, rounded down, to reach the point of three years’ imprisonment. I note that applying the discount for a guilty plea at this stage is in fact misplaced: the guilty plea discount should be applied after any uplifts or deductions are made for aggravating or mitigating factors personal to the offender.6 This has resulted in nine months being taken off for the guilty plea discount, as opposed to eight.
6 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [72].
[12] The Judge declined to make a discrete discount on account of Mr Pauling’s youth, which was between 20 and 25 at the time of the offending. The Judge noted that the cases in which discounts have been made for the offender’s youth involve offenders younger than Mr Pauling was at the time of offending.7
[13] The Judge further declined to make a significant discount for remorse due to comments made by Mr Pauling to a Court report writer, namely, that his decision to enter a guilty plea was not one he made comfortably and that he had no memory of the offending but, when the allegations came out, he took steps to resolve his alcoholism, in an effort to safeguard him from further and future allegations.
[14] The Judge eventually made a reduction of six months to recognise the lapse of time since the offending, the lack of previous convictions, Mr Pauling’s self- rehabilitation efforts, his age and health, and a minimum discount for remorse given that Mr Pauling wanted to attend a restorative justice conference, he had pleaded guilty, and did not dispute the summary of facts.8
[15] The end sentence granted was therefore two years six months’ imprisonment.9 The Judge did not consider home detention.
Approach to appeal
[16] This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion. An appeal against sentence must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.10 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.11
7 R v Pauling, above n 1, at [21].
8 At [29].
9 At [29].
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
11 Ripia v R [2011] NZCA 101 at [15].
Mr Pauling’s position
[17] Counsel for Mr Pauling accepts that the starting point adopted by the Judge of three years 10 months was appropriate, but submits the Judge erred in failing to apply adequate discounts for five mitigating factors personal to Mr Pauling and that this failure resulted in an end sentence that is manifestly excessive.
[18] Second, Mr Pauling submits the Judge ought to have sentenced Mr Pauling to 12 months’ home detention. Imprisonment is a sentence of last resort.12 Counsel further accepts that if home detention is imposed, the Court can make a registration order under s 9 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 and require Mr Pauling to comply with the comprehensive reporting obligations that attach to such an order.
[19] Third, in his additional submissions, counsel submits that, as Mr Pauling’s offending occurred before 1 October 2007, there is no restriction on a sentence of home detention to cases in which a sentence of two years’ imprisonment or less would have been imposed. Counsel therefore submits that even if the end sentence of two years six months’ imprisonment is not held to be manifestly excessive, home detention should still be imposed.
The Crown’s position
[20] The Crown opposes the appeal on the basis that the sentence was appropriate in the circumstances and the Judge appropriately took into account all mitigating factors.
[21] Overall, the Crown submits the discount of six months’ imprisonment for personal mitigating factors, equating to approximately 13 per cent of the effective starting point, was appropriate. The combined discount adequately reflected the appellant’s lack of offending in the intervening years and his willingness to participate in restorative justice. No mitigating factors relating to the appellant were overlooked. Accordingly, the sentence imposed was not manifestly excessive.
12 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [18].
Analysis
[22] The starting point of three years ten months’ imprisonment was appropriate, as counsel both agree, taking into account the relevant aggravating factors of the offending. That is, the ongoing abuse, the lengthy period of time, the fact that the children were young, they were in their home environment, there was a predatory aspect to what occurred given that they were often asleep when the offending occurred, and there was a clear breach of trust.
[23] I turn then to consider whether the five mitigating factors advanced by Mr Pauling were adequately taken into account by the Judge in imposing the end sentence of two years six months’ imprisonment.
The lapse of time and lack of previous convictions
[24] Mr Pauling has no relevant previous convictions for offending of this nature. His last offence was for careless driving in 1990. It has been 39 years since this offending and over 29 since he last appeared in Court.
[25] The Crown submits that a discount for good character is not available in the circumstances. The appellant’s offending involved a breach of trust and persisted over several years. These are circumstances in which the Court of Appeal has held a discount for previous good character is not appropriate.13
[26] However, in R v Carruthers, the Court of Appeal held that where in the years that have intervened the offender has demonstrated he has overcome his earlier proclivities and has settled into a normal and law-abiding life, that fact must be recognised.14 Individual deterrence is no longer as necessary. In that case, which was also one of indecency against children committed 13 years before sentence, the Court of Appeal gave a discount of 25 per cent in recognition of the lapse of time since the offending and the lack of previous convictions. Similar discounts have been given in
13 King v R [2015] NZCA 475 at [32].
14 R v Carruthers CA 401/94, 10 April 1995 at 4-5.
other cases to reflect an offender’s good character and the lapse in time since offending.15
[27] The Judge included this factor in making a six month deduction but did not indicate to what extent, or by what percentage, this factor counted. I consider the lapse of intervening time since the offending is a significant factor justifying a 15 per cent discount.
Youth at the time of offending
[28] Mr Pauling was aged 20 to 25 at the time of offending. Youth has been held to be a mitigating factor in sentencing, and to extend beyond the age of 18.16 The Crown submits that the extent of youth discount available will vary depending on factors such as the seriousness of offending,17 and submits there is no fixed discount for youth.18 Here the offending was serious, and at 20 – 25 years of age, Mr Pauling was not particularly young.
[29] I accept the Crown’s submission. I do not consider that any further discount should be applied for Mr Pauling’s youth at the time of offending. Counsel for Mr Pauling has referred the Court to cases such as R v Churchward,19 Day v R,20 R v Fenton,21 R v McAllister,22 and R v Aiolupo,23 to advance the proposition that offenders over the age of 18 can still receive a discount on account of their youth. In all those cases the offenders were 19, with the exception of R v Churchward where the offender was 17.
15 In R v Webb CA 13/04, 17 June 2004, a 25 per cent discount was provided by the Court of Appeal to reflect the appellant’s good character and that he had lived a worthwhile life in the intervening period (12 years); and in Parkin v R [2018] NZCA 404, an 18 percent discount was provided by the Court of Appeal to reflect the appellant’s good character and lapse in time since the offending (37 years).15
16 R v Churchward [2011] NZCA 531.
17 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [83].
18 Rolleston v R [2018] NZCA 611 at [35].
19 R v Churchward, above n 16.
20 Day v R [2010] NZCA 172.21 R v Fenton [2008] NZCA 379.
22 R v McAllister (2001) 18 CRNZ 606 (CA).
23 R v Aiolupo CA58/01, 21 June 2001.
[30] By contrast, Mr Pauling was 20 to 25 at the time of the offending. He was therefore at the older end of applicability for a youth discount, if any. Further, the offending was very serious in nature. There was a clear abuse of trust, and despite Mr Pauling’s relative youth, the age disparity between himself and his victims was still considerable. In these circumstances, I do not consider the District Court’s failure to give a discrete discount for youth was in error.
Efforts at self-rehabilitation
[31] Mr Pauling was aware of the first allegation in 1992 and this prompted him to resolve his alcoholism. Mr Pauling has admitted that during the time of the offending, he was an abuser of alcohol. Mr Bourke for Mr Pauling submits that this admission is not an attempt to displace blame, but rather as an explanation of why he cannot recall the offending.
[32] In order to reduce his risk of re-offending, Mr Pauling underwent alcohol abuse treatment, which appears to have been successful and may well have contributed to his conviction-free record since the 1990s. It is a factor, in my view, to be considered along with Mr Pauling’s age and ill-health, which I deal with below.
Age and health
[33] Mr Pauling is 64 years old, with advanced glaucoma in both eyes. He is profoundly blind and uses a stick to help him navigate. He uses eyedrops daily and has needling procedures to alleviate intraocular pressure on his left eye. His blindness presents day-to-day difficulties in living and recently, he fell on the footpath, resulting in significant injury and a fractured wrist.
[34] The Crown submits the Court of Appeal has emphasised that discounts for age and ill-health are limited.24 On the other hand, counsel for Mr Pauling submits that the Court of Appeal recently reduced a sentence by 21 per cent to acknowledge the appellant’s efforts to rehabilitate himself and his ill-health as this would make serving
24 M (CA91/2012) v R [2013] NZCA 325 at [54]-[55].
a sentence of imprisonment more difficult for him.25 I accept counsel for Mr Pauling’s submission that, as a result of his ill-health, Mr Pauling would be especially vulnerable in a prison setting.
[35] I consider that a 15 per cent discount for both Mr Pauling’s efforts at self- rehabilitation and his age and ill-health is appropriate in these circumstances.
Remorse
[36] Mr Bourke submits the Judge did not appropriately take into account Mr Pauling’s remorse. The Judge relied on comments Mr Pauling made to the Probation Officer that he was uncomfortable about changing his plea to guilty because he said he had no recollection of the events. Counsel submits Mr Pauling has consistently said he has no recollection due to his alcohol abuse, and he was uncomfortable about pleading guilty because of the seriousness of the decision, which was not to be taken lightly. This is not a case, he says, where Mr Pauling seeks to resile from his acknowledgement of guilt, and some discount should have been awarded for remorse.
[37] The Crown submits it is well-established that discounts for remorse will be available where there is “hard evidence of genuine remorse”, but only in such circumstances.26
[38] I observe that the Supreme Court in Hessell v R has held that a proper and robust evaluation of all the circumstances may demonstrate an offender’s remorse.27 Remorse deserving of discount need not be “exceptional”. However, it should be considered distinct to the guilty plea.28 Here, the Judge relied heavily on the pre- sentence report to assess whether Mr Pauling had genuine remorse or not. From that report, the Judge concluded there was no clear or tangible evidence of remorse to justify giving a discount.
25 Matthews v R [2019] NZCA 208 at [7]. I note that the scale of offending in this case, possession of materials and equipment with the intent that each be used in the manufacture of methamphetamine, was much less serious.
26 R v Lambert CA456/05, 4 April 2006 at [25].
27 Hessell v R, above n 6, at [64].28 At [63]-[64].
[39] The way in which the Probation Officer addressed this in the Provision of Advice to Courts (PAC) report is as follows:
When asked if he agreed with the Summary of Facts, he stated “I agree that the Summary of Facts are of a similar vein to the allegations”. He stated that “the decision to change to a guilty plea was not one that I made comfortably”. Mr Pauling advised that he has “no memory of it” (the offending). He said that he was made aware of the first allegation in 1992 which prompted him to resolve his alcoholism in an effort to safeguard himself from future allegations.
…
It was difficult to ascertain if he accepts responsibility for the charges that he has plead guilty too, because he said that he has no recollection of the events, therefore his remorse could not be adequately assessed. Attempts to discuss rehabilitative treatment with Mr Pauling were difficult, given that he did not acknowledge his offending, although he did comment that he would attend an initial meeting with a department psychologist [emphasis added]
[40] I consider the way in which the report writer has phrased “therefore his remorse could not be adequately assessed” is a comment directed more at the Probation Officer’s ability to undertake an assessment, rather than Mr Pauling’s lack of remorse. In my view, the Judge has placed weight on the Probation Officer’s inability to assess remorse as a failing on the part of Mr Pauling to be remorseful.
[41] The Judge referred to these comments in the report and considered he had to look more closely at accountability, responsibility for harm, the interests of the victims, deterrence, denunciation, and protection of the community. He was not satisfied that Mr Pauling had made an expression of remorse, although noting the steps that Mr Pauling took about his alcoholism and his plea of guilty.
[42] I consider that the Judge misconstrued the comments of the Probation Officer and overlooked that, in addition to Mr Pauling’s acknowledgment of guilt, he was willing to take part in restorative justice meetings and apologise to his victims, as well as attend a departmental psychologist’s counselling session. Although remorse was mentioned by the Judge in his global six month discount, I consider that the framing of the PAC report was unfortunate. I would give a five percent discrete discount for Mr Pauling’s remorse and willingness to take responsibility for his offending in these ways.
Conclusion on discounts
[43] Taking four of the mitigating factors into consideration, namely, the lapse of time since the offending and the lack of previous convictions, Mr Pauling’s own efforts towards self-rehabilitation and his age and health, and his remorse, I accept Mr Bourke’s submission that these factors should result in a moderate to substantial discount. I consider an appropriate discount from the starting point of three years ten months’ imprisonment is 35 per cent; that is 15 per cent for the lapse in time and lack of previous convictions; 15 percent together for the attempts at self-rehabilitation and Mr Pauling’s age and ill-health, and a five percent discount for remorse.
[44] This represents a 35 percent discount, which takes the sentence to 30 months, or two years six months’ imprisonment. I then apply the 20 per cent discount for Mr Pauling’s guilty plea. This results in an end sentence of 24 months, or two years’ imprisonment, which, for the reasons that follow, I would convert into a sentence of 12 months’ home detention. I consider this adequately meets the sentencing principles of deterrence and denunciation, already reflected in the starting point, as well as protection of the community.
[45] In any event, my review of the end sentence is not determinative here, because the sentence of home detention in this case was not restricted to a term of two years’ imprisonment or less.
Home detention
[46] Under s 15A of the Sentencing Act 2002 (the Act), the Court has a discretion to impose a sentence of home detention. That section provides:
15A Sentence of home detention
(1)If a court is lawfully entitled under this or any other enactment to impose a sentence of home detention, it may impose a sentence of home detention only if—
(a)the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and
(b)the court would otherwise sentence the offender to a short- term sentence of imprisonment.
(2)This section is subject to any provision in this or any other enactment that—
(a)provides a presumption in favour of or against imposing a sentence of home detention in relation to a particular offence; or
(b)requires a court to impose a sentence of imprisonment in relation to a particular offence.
[47] However, as Mr Pauling’s offending occurred before 1 October 2007, s 57 of the Sentencing Amendment Act 2007 governs the imposition of home detention sentences, not s 15A. Under s 57, the Court is not restricted in its consideration of home detention to cases where “a short sentence of imprisonment”, two years’ imprisonment or less, would have been imposed. The following extract from the Court of Appeal in R v Hill explains the position:29
[28] We deal first with jurisdiction. The appellant’s offending occurred in October 2006. Section 80A of the Sentencing Act came into force on 1 October 2007 (see s 2 of the Sentencing Amendment Act and the Sentencing Amendment Act 2007 Commencement Order 2007 (SR 2007/254)). Accordingly, the court’s power to impose a sentence of home detention in this case was governed by s 57 of the Sentencing Amendment Act rather than s 15A of the Sentencing Act. In contrast to the position under s 15A, a court’s power to sentence to home detention under s 57 is not limited to cases where a “short-term sentence of imprisonment” (currently two years or less) would otherwise have been imposed. Rather, it depends simply on the existence of a power to imprison (s 57(a)). In the present case, then, the Judge had jurisdiction to sentence the appellant to home detention.
[48] The Court of Appeal in R v Hessell has held that, even where s 15A(1)(b) does not apply, the higher the prison sentence would have been above two years, the less likely it is that home detention will be appropriate as an alternative sentence.30 Two years eight months’ imprisonment was considered to be “right at the edge”.31
[49] I understand that counsel did not make the District Court Judge aware of the ability to grant home detention in this case, despite the end sentence of imprisonment being over two years. I consider that led the District Court Judge into error, by failing to consider whether the purposes of sentencing could still be met by a sentence other than imprisonment.
29 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
30 R v Hessell [2009] NZCA 450 at [102].
31 At [102].
[50] Overall, I do not consider the Judge could be satisfied that the purposes of denunciation, deterrence and rehabilitation could only be achieved by a sentence of imprisonment.32 As noted, imprisonment is a measure of last resort, and a sentence of home detention is a severe sentence, second only to imprisonment in the hierarchy of offences in s 10A of the Act. A sentence of home detention carries with it, in considerable measure, the principles of deterrence and denunciation.33
[51] The offences Mr Pauling has committed are very serious. However, given the passage of time between the offending, nearly 40 years, the lack of any relevant convictions during that time and Mr Pauling’s own efforts to self-rehabilitate, I do not consider there is a need for personal deterrence to take priority in this sentencing process. I consider a sentence of home detention will denounce his conduct, and promote a sense of responsibility and accountability for the harm he has caused.
[52] Further, the sentence of home detention, which places Mr Pauling, in effect, in isolation, will still provide adequate protection for the community. I consider the risk of Mr Pauling reoffending is relatively low, and is sufficiently mitigated by a sentence of home detention, particularly when coupled with electronic monitoring and his registration on the Child Sex Offender Register, as Mr Bourke has accepted and the Crown urges. Given his condition and frailty, this sentence will sufficiently mitigate against any risk Mr Pauling may still pose to the community and is the least restrictive outcome available to the Court.
[53] Section 9 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 provides that if a court imposes on a person a non-custodial sentence in respect of a conviction for a qualifying offence, the court may order that the person be placed on the register and so must comply with the reporting obligations of the Act. Registration in these circumstances will be for eight years.34 Mr Pauling is convicted of qualifying offences.35 To make such an order, the court must be satisfied that the person poses a risk to the lives or sexual safety of children generally.36
32 Sentencing Act 2002, s 7(1).
33 R v Iosefa [2008] NZCA 453 at [41].
34 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 35(1)(d).
35 Schedule 2, s 2.
36 Section 9(2).
[54] While I consider the risk in these circumstances can be sufficiently mitigated by a sentence of home detention, the risk, while assessed as low, is still present, and is neither fanciful or remote.37 As this Court has held, when an offender is assessed as presenting the necessary degree of ongoing risk to child safety as to impose a sentence of home detention, as here, the role of the discretion in s 9(3) becomes even more circumscribed.38 It will not be often that the discretion points away from registration.39
[55] Taking into account all the factors in s 9(2), and in particular the seriousness of the offending, the age of the victims and the abuse of trust, I consider the necessary level of risk required by s 9(2) exists, and Mr Pauling should be registered. Being on the register will require Mr Pauling to comply with comprehensive reporting obligations. I consider this will assist in monitoring, and adequately meet any residual concerns regarding protection of the community.
[56] Finally, Mr Pauling has an address, being the current bail address. The PAC report has assessed it to be a suitable address for home detention.
Conclusion
[57] I find that the Judge erred in proceeding on the basis that a short sentence of imprisonment of two years or less was required in this case, before he could consider a sentence of home detention. Although not determinative in this case, I also find that the Judge failed to give an adequate reduction for the mitigating factors in reaching his end sentence.
[58] The sentence of two years six months’ imprisonment is quashed and substituted for a sentence of 12 months’ home detention. In reaching this conclusion, I have borne in mind the purposes and principles of the Act, in particular the need to hold Mr Pauling accountable and responsible for the harm he has caused, the interests of the victims, deterrence and denunciation, protection of the community, and his personal circumstances.
37 Goose v Police [2017] NZHC 2456; and Dayaratne v Police [2019] NZCA 30 at [19].
38 Goose v Police, above n 37, at [29].
39 At [30].
Result
[59]The appeal is allowed.
[60] The sentence of two years six months’ imprisonment is quashed. A sentence of 12 months’ home detention is substituted, to be served at the proposed address, on the following special conditions:
(a)Mr Pauling is not to associate with or contact the victims of his offending without the prior written approval of a Probation Officer.
(b)Mr Pauling is to attend a psychological assessment with a departmental psychologist as directed by a Probation Officer and complete any treatment and/or counselling as recommended by the assessment to the satisfaction of a Probation Officer.
(c)Mr Pauling is not to associate or otherwise have contact with any person under 16 years of age except in the presence and under the supervision of an “Approved Informed Adult”. An “Approved Informed Adult” means a person who has been given prior approval in writing by a Probation Officer as being suitable for the purpose of this condition.
(d)Mr Pauling’s name is to be placed on the Child Sex Offender Register under s 9 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016.
Cull J
Solicitors:
C&M Legal, New Plymouth for the Respondent
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