R v Hamilton
[2023] NZHC 3138
•8 November 2023
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT(S)/ PERSON(S) 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-2022-004-1006
[2023] NZHC 3138
THE KING v
ALAN ANDREW HAMILTON
Hearing: 8 November 2023 Appearances:
J V Barry for Crown
S J Gray for defendant
Date of sentence:
8 November 2023
Reissued:
27 November 2023
SENTENCING NOTES OF JAGOSE J
Counsel/Solicitors:
Susan Gray, Barrister, Auckland Meredith Connell, Auckland
R v HAMILTON [2023] NZHC 3138 [8 November 2023]
[1] Mr Hamilton, as you know, on 30 May this year, a District Court jury found you guilty of one charge of indecent assault.1
[2] As a sentence of preventive detention then was contemplated, you have come to me in this Court to sentence you for that offending.2 But the Crown does not now seek such a sentence, correctly comprehending your offending to be less serious than similar offending for which my sentence of preventive detention was overturned.3
[3] I have read and listened to all that the lawyers have had to say, both for you and for the Crown. The Crown proposes a starting point of 18 months’ imprisonment for your offending, uplifted by six months for your previous offending. Your lawyer, Susan Gray, proposes a 12-month starting point uplifted by three months for your previous offending. She then claims a 20 per cent discount for factors in your background said causative of your offending. She points out, as you have been in custody for some 21 months, that would give rise to your immediate release although, as the Crown points out, on the resumed conditions of your extended supervision order (ESO).4
[4] I have given the lawyers’ submissions careful consideration. I am not going to recite them, because sentencing is an intense exercise of my own judgement. I am not bound by the lawyers’ views; I have to come to my own decision.
[5] In sentencing you, I must accept as proven all facts essential to your established guilt.5 To meet sentencing’s multiple purposes,6 I must satisfy myself of the appropriate sentence for the gravity (or seriousness) of your offending, including your culpability (or responsibility) for it, as the least restrictive outcome appropriate in the circumstances.7
1 Crimes Act 1961, s 135; maximum penalty, seven years’ imprisonment.
2 Sentencing Act 2002, s 90.
3 Moore v R [2023] NZCA 286.
4 Parole Act 2002, s 107I.
5 Sentencing Act, s 24(1)(b).
6 Section 7: accountability, responsibility, victims’ interests, reparation, denunciation, deterrence, community protection, rehabilitation and reintegration.
7 Section 8.
Background
[6] I need first to cover off the background for your offending, so that people reading this judgment can understand the conduct for which I am to sentence you.
[7] Late in the afternoon of Saturday, 19 February 2022, you and another person were drinking on a bench in Auckland’s Victoria Park. The primary victim of your offending, a slight 17-year-old male, had been cycling around the park for some time. As he passed you, you called him over. You hugged him, then rubbed his back. While holding him with your right hand, you touched him with the other over his clothing around the area of his genitals. You released the victim after a witness intervened, when the victim cycled away.
Victim impact
[8] We now know the victim is intellectually impaired, and has taken no part in this proceeding. I therefore have no indication of the impact of your offending on him.
Personal circumstances
—criminal history
[9] You were nearly 57 years old at the time of your offending. Your criminal history includes your 2015 and 2003 convictions for respectively an indecent act on and indecent assault of young persons,8 for which you were sentenced to each two years’ imprisonment and three months’ imprisonment.
[10]You otherwise have a more or less continuous record of nearly 150 convictions
— predominantly for lower-level driving, theft and nuisance offending, although you also have some relatively serious violence convictions, since the early 1980s — resulting in a variety of sentences including periods of imprisonment.
[11] Alcohol consumption and disregard for court orders are consistent themes in your offending. Your 2018 release from your 2015 sentence was accompanied by a six-
8 Crimes Act, ss 134(3) and 141 (the latter since repealed).
year ESO, breaches of which you have been convicted a dozen times since, leading to further periods of imprisonment. Given those, the ESO still has some years to run.
—pre-sentence report
[12] For your sentencing, I have a pre-sentence report prepared by the Department of Corrections. It assesses you as of high risk of harm to others and at high risk of reoffending, by reason of your “alcohol use, offending-related sexual arousal, lack of impulse control and callous attachment towards others”. You denied your guilt to the report writer, and rejected an electronically monitored sentence as compromising your wellbeing as a diabetic. Given also your disregard for court orders, the report writer recommends your imprisonment.
—health assessor report
[13] I also have a health assessor report, prepared for the purposes of consideration of preventive detention (for which purposes “reports from at least 2 appropriate health assessors about the likelihood of the offender committing a further qualifying sexual or violent offence” are required).9 Ms Gray seeks to rely on it for your explanations to the health assessor of your offending and background. You have seen the report and agree with its contents.
[14] Given preventive detention no longer is pursued, and a second report is not available, I am reluctant to give the health assessor’s report too much weight for your sentencing. It plainly is not evidence called by you under s 27, and does not provide any basis for the health assessor to speak on your personal circumstances and less on its relationship with your offending, except for its record only of your statements to the health assessor. No wider investigation of your background has been conducted.
[15] The health assessor is entitled, relatively uncritically, to take into account “any statement” by you about your conduct.10 She observes your history of sexual offending as far back as your conviction for soliciting in 1983, no longer a crime, “is considered potentially an indication of [your] own vulnerability [as] a victim of abuse”.
9 Sentencing Act 2002, s 88(1)(b).
10 Section 88(3).
Approach to sentencing
[16]I now explain how I will go about sentencing.
[17] The usual sentencing method involves two stages. First, I decide a starting point for the type of offending for which you are convicted. That involves identifying also any aggravating or mitigating features of the offending.11 Then I take into account all aggravating and mitigating factors personal to you, to be calculated as a percentage of the starting point.12 Last, I stand back to assess the appropriateness of that sentence in your individual circumstances.13
[18] In the end, my sentence is to reflect this community’s repudiation of your crime, the sentence being “determined not on impulse or emotion but in terms of justice and deliberation”.14 I must have regard for the statutory purposes and principles of sentencing.15 I must hold you accountable for your offending and for the harm you have caused.16 Your sentence should be sufficient to denounce your conduct,17 to deter you and others from committing such offences,18 and to protect the community.19
[19] I must consider the gravity and seriousness of your offending, and take into account its effect on victims.20 The sentence must take into account the desirability of consistency in sentencing,21 and anything in your circumstances as would make an otherwise appropriate sentence “disproportionately severe” in your case.22 I must impose the least restrictive outcome appropriate in the circumstances.23
11 R v Taueki [2005] 3 NZLR 372 (CA).
12 Moses v R [2020] NZCA 296, [2020] NZCA 296 at [46]–[47].
13 Berkland v R [2022] NZSC 143 at [22] citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [38].
14 R v Puru [1984] 1 NZLR 248 (CA) at 249.
15 Sentencing Act, ss 7 and 8.
16 Section 7(1)(a).
17 Section 7(1)(e).
18 Section 7(1)(f).
19 Section 7(1)(g).
20 Section 8(a), (b) and (f).
21 Section 8(e).
22 Section 8(h).
23 Section 8(g).
[20] These purposes and principles of sentencing have no ranking.24 My ultimate consideration is if “the sentence is a just one in all the circumstances”, having regard to “the circumstances of the offence and offender against the applicable sentence purposes, principles and factors”.25
Starting point
[21]I begin with setting a starting point for your offending.
[22] On the scale of indecent assault offending with a maximum sentence of seven years’ imprisonment, your offending is toward the lower end. Factors leading to more severe standalone sentences — degrees of planning, excessive force, extended duration and material offensiveness — all are missing in your case.26 While the variety of indecent assault makes a tariff unworkable, and there is little binding appellate guidance for indecency cases,27 “a general range for indecent assault should be between six months and two years’ imprisonment”.28 Headroom is reserved for “the most serious in terms of culpability for offending of this type”.29
[23] As a matter of consistency, I also should use your prior convictions for indecent offending against young persons to establish a referable starting point. Plainly your offending here is less serious than your 2011 offending in masturbating [Redacted] in gross breach of trust. There the judge took a 21-month starting point, uplifted by three months for your prior convictions.30
[24] Your offending here is aggravated by the victim’s particular age and health- related vulnerabilities.31 As is clear from s 9(1)(g)’s phrasing, those are not factors of which you are required to have known for them to be relevant to your sentencing. Repeated indecent assault offending against younger victims, whether or not under the
24 Moses v R, above n 12, at [4], citing Hessell v R, above n 13, at [37].
25 Moses v R, above n 12, at [49].
26 Troon v R [2019] NZCA 265; Harris v R [2018] NZCA 632; Hishon v R [2016] NZCA 558; R v Ngahere CA99/02, 25 September 2002; Kennedy v Police [2019] NZHC 2644; Dayal v R [2016] NZHC 1027; R v Ismail [2016] NZHC 79; R v Koia HC Auckland T 992403, 19 April 2000.
27 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [3].
28 S v R [2017] NZCA 459 at [30], citing R v Hohaia CA221/05, 17 October 2005.
29 Craig v R [2019] NZSC 103 at [7], refusing leave to appeal from Troon v R, above n 26.
30 R v Hamilton [2015] NZDC 20289 at [4] and [10].
31 Sentencing Act, s 9(1)(g).
age of 17, may support a starting point towards two years.32 “[R]elatively brief touching [of a child] in the genital area over clothing” resulted in a “broadly consistent” 18-month starting point.33 The near 40-year disparity in your and the victim’s ages also is an aggravating feature of the offending.34 The victim’s non- participation in this proceeding suggests a significant degree of trauma. His age being minorly over that of a young person as defined offers no mitigation.35 You described him to police as “a brown boy about 18 years old”. There are no mitigating features to your offending, which was wholly opportunistic.
[25]Ultimately, I take a starting point of 18 months’ imprisonment.
Adjustment for personal factors
[26]I now turn to consider factors personal to you as contributing to your offending.
—aggravating factors
[27] As I already have identified, two of your prior convictions also are for indecency offending. They show your predilection for this type of offending has not abated over time. There is nothing to suggest you did not understand the previous warnings you have received, yet they have not deterred you. Your impulse control has not improved over time. You deny responsibility for your offending, saying you were “wrongfully accused” and only found guilty because you “[were not] represented properly”. These are aggravating factors, as well as indicating your continuing risk to young persons.36
[28] I uplift my starting point by four months on account of your relevant offending, both for indecent act and indecent assault but particularly your persistent breaches of the ESO, which is intended for one purpose only: to protect the community from your “real and ongoing risk of committing serious sexual … offences”.37 Such only could
32 Hishon v R, above n 26, at [9].
33 R v S (CA465/05) CA465/05, 11 April 2006 at [17], referring to R v McEwen CA135/03, 19 June 2003.
34 McLeod v R [2022] NZCA 150 at [28].
35 Crimes Act, s 134(6)(a).
36 McLeod v R, above n 34, at [29]–[30].
37 Parole Act 2002, s 107I(1).
be ordered on the basis you had a pervasive pattern of serious sexual offending, and there was a high risk you would commit such in the future.38 Uplifts for prior offending serve similar purposes.39 Again, I am informed by your prior relevant conviction’s three-month uplift, which still had not deterred your reoffending.
—mitigating factors
[29] As I said earlier, Ms Gray points to the health assessor’s assessment it was “likely” the sexual abuse you reported to have suffered — contributing to your untreated trauma, alcohol addiction and transient lifestyle — has led you to put yourself “in unsafe situations through reckless behaviour”. The health assessor characterises your ‘reckless behaviour’ as “seeking affection whilst lacking sexual boundaries when disinhibited through alcohol intoxication”. And she allows as “possible” that abuse also may have “normalized sex with adolescent boys”.
[30] The health assessor’s attribution of causality is exceptionally precise. Her characterisation of your offending as affected by alcohol cannot be taken into account by way of mitigation.40 The balance of her attribution is only as ‘possible’. Any mitigation open to being derived from the health assessor’s report is undermined by your continued denial of your offending. Consistently with that denial, the health assessor’s report is nothing you have called to explain your offending. And thus there can be no discount for remorse.
[31]I identify no mitigating factors personal to you.
End point
[32] The result is an end point of 22 months’ imprisonment. Standing back, I am satisfied such a sentence appropriately reflects the purposes and principles of sentencing as they apply to you for this offending.
38 Section 107I(2).
39 Paerau v R [2018] NZCA 139 at [44], citing Beckham v R [2012] NZCA 290 at [84] and R v Ward
[1976] 1 NZLR 588 (CA) at 589–590.
40 Sentencing Act, s 9(3).
Sentence
[33] Mr Hamilton, please stand. On your conviction for indecent assault, I sentence you to 22 months’ imprisonment. You may stand down.
—Jagose J
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