R v H(CA101/06)

The Court of Appeal of New Zealand heard an appeal by the Solicitor-General against the refusal of Allan J to impose a sentence of preventive detention on the respondent after he pleaded guilty to 13 charges of sexual offending against eight female victims over a period of 15 years. The Crown also sought to argue that the sentence imposed by Allan J, which was five and a half years imprisonment, was manifestly inadequate. The central legal issues for the Court were whether the Judge correctly assessed the expert evidence regarding the likelihood of the respondent reoffending, and whether the sentence imposed was appropriate.

The Court found that the Judge was entitled to conclude that there was not strong evidence pointing to the likelihood of the respondent reoffending, despite the seriousness of the offending. The psychologists identified a high risk of reoffending but the Static AS actuarial measure placed the respondent in a low risk category. The two psychiatrists both considered that there was a “mixed profile” which made prediction of future sexual misconduct by the respondent difficult. The Court also found that the seriousness of the offending was not the only consideration in deciding whether a sentence of preventive detention should be imposed. The Court noted that the respondent had confessed spontaneously and started a SAFE programme, indicating a readiness to get treatment and recognise his conduct was wrong. The Court concluded that the difference between what they would regard as an appropriate sentence and the one imposed was not sufficiently material to warrant allowing the appeal.

The final outcome was that the Court granted the Solicitor-General leave to appeal but dismissed the appeal. The Court did not order any changes to the sentence imposed by Allan J.