R v H HC Auckland Cri-2006-044-6242

[2008] NZHC 1605

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2006-044-006242

QUEEN

v

H

Hearing:         14 October 2008

Appearances: H Lawry and L Marshall for Crown

S Lance for Offender

Judgment:      14 October 2008

SENTENCING NOTES OF JOHN HANSEN J

Solicitors:

Meredith Connell, PO Box 2213 Auckland

S Lance, Barrister, PO Box 308, Auckland

R V H HC AK CRI-2006-044-006242  14 October 2008

[1]      H   you have pleaded guilty to two charges of sexual violation by  unlawful  sexual  connection,  and  one  charge  of  administering  the  Class A controlled drug LSD.

[2]      Before turning to the specific facts of this case it is necessary very briefly to mention the background.   Both you and the two complainants in this case were resident at the Centrepoint community.  No doubt that community was set up with the very best of intentions, and it is apparent that both the complainants and yourself were at this centre because of difficulties you had encountered in your respective pasts.  Obviously that institution changed over the years and rather than assisting it is clear it had the opposite effect for a number of people, most significantly in this case the two complainants.

[3]      In each case the sexual violation charges relate to one instance of digital penetration.  The drugs charge relates to you giving LSD to one of the victims.  It is said in other cases, and indeed noted by your counsel this morning, that there was a freewheeling  attitude  to  sexual  relationships  within  this  community. Notwithstanding that, the reality is that that does not condone in any way non- consensual activity which this was.   You have now ultimately recognised this by your guilty pleas.

[4]      The   victim   impact   statements   show   that   your   offending   has   had   a considerable impact on the life of both complainants.  I accept there is something in what Mr Lance says in relation to one of the complainants, that she faced other difficulties and abuse while at Centrepoint as well that had no doubt contributed to her  difficulties.    But  what  those  victim  impact  statements  make  plain  is  that offending of this sort by older males against teenagers has a lasting effect that few males can properly understand.  I must bear that in mind.

[5]      You are aged 59.  You had a troubled start to life and many years ago there was a drug and maybe an alcohol problem as well.  One of the reasons you went to Centrepoint was to deal with that and a mental health problem you had.  Doubtless Centrepoint failed badly in that regard in your case.  What is apparent, however, is

that since you removed yourself from Centrepoint you have lived a blameless life. You  are  a  valued  member  of  the  community  now,  you  have  put  your  earlier problems behind you and there are a number of references before me that speak very highly of you.  Your previous convictions, as I have already noted to your counsel, are irrelevant for present sentencing purposes.

[6]      In relation to the submissions received by both the Crown and the defence there is little disagreement between them as to the appropriate sentence to impose in this case.  The Crown contends looking at the totality of this offending, a starting point of three years’ imprisonment but accepts that allowance must be made to recognise your guilty plea, your apologies, (which was finally this morning a face-to- face apology to one complainant), and the reparation you have made.  The Crown contends for a final sentence in the range of two years’ imprisonment.  They take no issue with the recommendation for home detention in the probation report.  Clearly it is accepted by everyone that you are at low risk of re-offending.

[7]      Your counsel takes no real issue with the starting point but submits strongly on the basis of s 16 of the Act and the decision of R v Hill CA559/07 29 February

2008, that the appropriate outcome here should be one of home detention.

[8]      I bear in mind the principles and purposes of sentencing set out in ss 7 and 8 of the Act.  I bear in mind the aggravating features, which is notwithstanding what occurred within this community, you were an older male in a position of trust to these two teenage girls.   The administration of the LSD again is an aggravating feature.   In mitigation there are in this case powerful factors.   Your guilty plea, which it is now accepted by the Crown, should be somewhat more generous than one could expect for pleading guilty in the course of a second trial.  That is because your counsel had offered on your behalf, and on your instructions, to plead guilty to the three charges for which I am to sentence you today, at a much earlier time.   You have made reparation.  You have made apologies, and I accept, although Courts are often cynical of this, in your particular case your remorse is genuine.  You have, as I have already noted, turned your life around significantly and become a worthwhile member of society.  Given your own difficulties that led you to Centrepoint, that is to be commended.

[9]      There are a number of authorities dealing with offending of this sort but all they tend to demonstrate is that there is no tariff for this type of offending.  Little is to be gained by reference to other cases which occurred in quite different circumstances to this.  But having considered those cases I agree with the Crown that an appropriate starting point is one of three years’ imprisonment.  For the offending against the first complainant I would adopt a starting point of two years, uplifted to three years for the offending against the second complainant and the administration of the LSD, but viewing that against the background of drug use within this community.

[10]     For the mitigating factors I have already mentioned, I accept it is appropriate to allow a substantial allowance.   In this case I accept an allowance of one-third would be appropriate, making a final sentence of two years’ imprisonment.  I must then turn and consider, given that is the final sentence that I would impose, whether or not you should be sentenced to home detention rather than imprisonment.

[11]     The starting point is s 16(2) of the Sentencing Act 2000, which states:

16       Sentence of imprisonment

…

(2)The court must not impose a sentence of imprisonment unless it is satisfied that,—

(a)a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and

(b)those purposes cannot be achieved by a sentence other than imprisonment; and

(c)      No other sentence would be consistent with the application of the principles in section 8 to the particular case.

[12]     I go then to the home detention legislation and in particular the decision of the Court of Appeal in the case of R v Hill.  At [32] the Court of Appeal stated:

First,  although  the  relevant  requirements  are  differently  worded,  both sections 57 and 15A indicate the home detention is intended to be a mechanism to reduce the number of people sentenced to imprisonment … an important objective of the new sentence of home detention is to reduce the prison population.

And further, and more importantly, at [33]:

… the sentence of home detention reflects the perception that societies interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment.   The explanatory note identifies the acknowledged advantage of home detention as including low rates of reconviction and re-imprisonment, high compliance rates and positive support for offenders’ reintegration and rehabilitation.

[13]     In this case some 20 years has passed since this offending.   It is serious offending.  It has had a significant impact on the complainants, which I accept.  But given the efforts you have made to turn your life around I can see no good would be served by sentencing you to imprisonment.  It seems to me that a sentence of home detention is appropriate in your case, although I trust that the complainants will understand that a sentence of home detention is a very significant interference with the liberty of the person sentenced to it.  I also note that you present a very low risk of re-offending.

[14]     Accordingly, you are sentenced to one year’s home detention, and 100 hours community work.

[15]     On completion of the sentencing you are to proceed directly to and remain at the residence of 1126 Kaipara Coast Highway, Helensville, and await the arrival of a monitoring company representative and the probation officer.

[16]     You are to reside at 1126 Kaipara Coast Highway, Helensville, and to be absent from the address only when authorised in writing to do so by the supervising probation officer.

[17]     You are to work only at employment authorised in writing by the supervising probation officer.

[18]     You are to refrain from the consumption of alcohol and illegal drugs.

[19]     You are to be assessed for and, if found suitable, complete a safe programme as directed by a probation officer.

[20]     You are to complete any other counselling or programmes if directed by a probation officer.

……………………….

John Hansen J