R v Palmer

[2009] NZCA 616

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA338/2009 [2009] NZCA 616

THE QUEEN

v

GRAHAM ASHLEY ROBERT PALMER

Hearing:         5 November 2009

Court:            William Young P, Chisholm and Priestley JJ Counsel:          C J Tennet for Appellant

A R Burns for Crown

Judgment:      21 December 2009         at 3 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

REASONS OF THE COURT

(Given by William Young P)

R V GRAHAM ASHLEY ROBERT PALMER CA CA338/2009  21 December 2009

Introduction

[1]      In April 2009, the appellant was tried before Judge McAuslan and jury on a charge of indecent assault.  He was found guilty and later sentenced to eight months imprisonment.

[2]      He now appeals against conviction and sentence.

Factual background

[3]      The charge arose out of an incident on Thursday 10 January 2008.   At the time, the complainant was 16.   She was living in a pre-fabricated unit which was situated at the back of a house in Manurewa.  She was a solo mother but her baby was, at the time of the incident, being looked after by her mother.

[4]      Around  9  am  that  morning  the  appellant  arrived  at  the  unit.    He  was accompanied by a 10 year old boy, Jack.  The appellant’s purpose in going there was to adjust the level of the unit and to do some work in the shower.

[5]      On the complainant’s evidence she awoke to find the appellant beside her bed.  There was some doubt in her mind as to whether the door had been locked (and indeed the evidence as to this was not particularly clear).  The appellant was able to reassure her that he was there for a legitimate purpose.  The appellant went outside to attend to the levelling of the unit and the complainant went into her shower (which was the only room in the unit that afforded any privacy) and changed out of her sleep wear into clothes.  When she went into the kitchen area of the unit, the appellant was there.  It seems that he established to his own (and perhaps her) satisfaction that the unit  was  level  by reference to  the level  of  water  in  a glass.    There  was  some interchange  during  which  he  obtained  her  phone  number  (or  perhaps  phone numbers), which she provided because she assumed that the request was in relation to the unit and the possibility of the appellant being required to work further on it. He wrote down his telephone numbers for her.

[6]      On the complainant’s evidence, the appellant then held out his arms open towards her and she, despite feeling uncomfortable, moved forward and hugged him. Her evidence at trial was that he held her in a strong grip and moved his hands down her back to just above her tail-bone.   He also kissed her on the cheek, neck and shoulder at which point she began to struggle  to get out of his embrace.   The appellant however continued to hold her and kiss her.  The incident ended when she received a text on her cellphone which she pretended was a call and the appellant left the property.

[7]      At trial the complainant did not come entirely up to brief.   She had been expected to say that the appellant had touched her bottom when he hugged her before leaving.  As indicated, she instead said that his hand went as far as a point just above her tail-bone.

[8]      The appellant gave an account of events to the police on 17 January 2008.  In this statement he said that when he arrived, the door was locked and he did not initially meet the complainant.  Instead he started to jack up the unit.  At this point the complainant came out and when he put out his hand to introduce himself, she kissed him on the cheek and he reciprocated by kissing her on the cheek.  When he came to leave he offered to introduce the complainant to his step-daughter (who had also had a child when quite young).  It was this suggestion which led to the exchange of telephone numbers.  He claimed that she initiated “a little cuddle” which involved him hugging but not kissing her.   In the course of this interview the interviewing officer alerted the appellant to the fact that swabs had been taken from the complainant’s cheek and neck.

[9]      The appellant was initially represented by Ms Jennifer Philson and the trial was scheduled to commence on 20 April 2009.   In March 2009 Ms Philson disengaged from the case essentially because she was unable to get what she considered were satisfactory instructions (namely instructions in writing) from the appellant.  She asked another South Auckland barrister, Ms Edith Te Whata, to take over the legal aid assignment.

[10]   The primary evidence of relevance to the jury at trial was that of the complainant.   Jack, the boy who accompanied the appellant to the complainant’s house, was called as a Crown witness and he gave an account of events which was of some assistance to the appellant in terms of the general narrative of events, however he did give evidence that the appellant kissed the complainant just before he left.  As well there was ESR evidence as to the appellant’s DNA being found on the complainant’s cheek and neck.  The appellant’s statement to the police was also in evidence but the appellant did not give evidence.

The conviction appeal

The grounds of appeal

[11]     A number of grounds of appeal were raised.  These can broadly be classified into five categories and we will address them under the following headings:

(a)     The verdict was unreasonable; (b)    Alleged errors by trial counsel; (c)     Misconduct by the prosecutor; (d)    A sleeping juror; and

(e)     The possibly prejudicial effect of the Close Up programme about the appellant which was shown three weeks before trial.

The verdict was unreasonable

[12]     The appellant contends that there was insufficient evidence of indecency (in terms of both actus reus and mens rea) to warrant a verdict of guilty.

[13]     It will be remembered that the complainant had not come up to brief and in particular did not claim in evidence that the appellant had touched her on her bottom. In his argument for the appellant, Mr Tennet suggested that were it not for the alleged bottom-touching the case would probably not have been prosecuted.

[14]     In  the  course  of  argument  we  were  taken  to  two  authorities  concerning broadly similar (in the sense of being arguably equivocal) actions, Milne v The Police (1990) 6 CRNZ 636 (HC) and Peters v The Police HC WHA CRI-2006-088-

004622 18 June 2007 in which there were different outcomes.

[15]     The Crown did not dispute that the hug was, at least initially, consensual. Instead, the Crown  case was  that indecency arose from the combination of the following factors:

(a)       The tightness of the hug;

(b)His  persistence  with  the  hug  and  kisses  to  her  cheek,  neck  and shoulder despite her resistance and attempts to push him away.

(c)       His hands moving down her back to just above her bottom.

[16]     We are of the view that if the jury were satisfied that this is what happened, it was open to the jury to conclude that the relevant conduct was indecent and to infer that the appellant had acted with the necessary mens rea.

Alleged errors by trial counsel

[17]     A little context is necessary in order to understand the primary complaints about counsel.

[18]     Ms Philson’s professional relationship with the appellant was subject to the constraint imposed by the appellant that she was only ever able to deal with him when he was at Court (either in relation to this charge or other charges he was facing).   He told her not to write to him.   She was wary of the appellant and not

prepared to act for him without written instructions as to what he claimed had happened between him and the complainant.

[19]     Those instructions were not forthcoming despite several requests.

[20]     The appellant was very interested in knowing the result of the ESR analysis of the swabs taken from the complainant’s cheek and neck.   As it turned out, Ms Philson did not receive these results until after her last meeting with the appellant. So while she was acting for him, he did not know what the results were.  Given what later happened (which we are about to discuss), we infer that his failure to give Ms Philson written instructions was because he was unwilling to commit himself to a particular narrative of events until he knew whether his DNA had been found on the complainant, and, if so, where.

[21]     A month before the trial was scheduled to commence, Ms Philson withdrew as counsel on the basis that written instructions were not provided by the appellant.

[22]     Ms Te Whata subsequently became involved in the case.   She formed the view (probably based on what Ms Philson had told her) that the appellant had had complete disclosure, and, in particular, had the ESR briefs of evidence.   She also discussed the ESR evidence with the appellant.    She, however, initially misinterpreted the relevant brief of evidence and formed the erroneous view that the appellant’s DNA had not been found on the complainant.  She shared this view with the  appellant.    We infer  that  this  was  on  26  March  2009  when  Ms  Te  Whata appeared for the appellant at a callover.

[23]     The   appellant   wrote   to   Ms   Te   Whata   on   28   March   2009.      This communication consisted of a letter and a document headed “Commentary”.

[24]     In the letter, the appellant recorded that when he arrived at the property he knocked on the door, but as no one answered he commenced work.  The complainant then  came  out  to  see  him,  and  he  put  out  his  hand  to  shake  her  hand.    The complainant kissed him on his cheek.  He did not kiss her back but rather placed his cheek against her cheek.  And, as to what happened when he left, he said:

I then gave her a little cuddle and left, no kissing and no touching on the bum.  That is untrue.

In this letter he also discussed the question whether he should give evidence:

I can’t see the point in my giving evidence, I have made a video statement (I

don’t have a transcript).

[25]     In the “commentary” he discussed what happened when he left the property in this way:

I then put my left arm out and gave her a cuddle across her shoulder.  I held my tools in my right hand.  I then left.  I did not kiss her or salivate on her cheek or neck.

Towards the end of this document he also noted.

Clearly she did not wash, no DNA from me on her neck or face, supports my no contact of lips statement.

[26]     On Friday 17 April 2009, the appellant made contact with Ms Te Whata by email.  In his communications he said that he did not have copies of the transcript of his police interview or of Jack’s statement and discussed the case more generally. Ms Te Whata did not respond to these emails.

[27]     The drift of appellant’s evidence before us was that he (and presumably Ms Te Whata) did not realise that his DNA had been found on the complainant’s cheek and  neck  until  the  ESR  witness  gave  evidence  and  that  this  contributed  to  his decision (which he had earlier communicated in writing to Ms Te Whata) not to give evidence.

[28]     We are well satisfied that Ms Te Whata realised her mistake in relation to the ESR evidence when she was preparing for trial over the weekend prior to its commencement.      She   produced   in   evidence   an   amended   version   of   the “commentary” in which she had marked-up (in yellow highlighter) what might be regarded as problematical aspects of the instructions given by the appellant.  She has noted references to DNA and also cross-referred to inconsistencies between the “commentary” and what the appellant had said at interview.   She crossed out the appellant’s statement:

I did not kiss her or salivate on her cheek or neck.

[29]     In Ms Te Whata’s affidavit she says she discussed with the appellant whether he wished to give evidence both after the ESR scientist gave evidence and at the conclusion of the Crown case.  She was able to produce to us instructions signed on the second day of the trial in which the appellant stated he knew of his right to give evidence  but  was  electing  not  to  do  so.    We  note  as  well  that  the  prosecutor mentioned  the  DNA  evidence  in  opening  and  Ms Te Whata  cross-examined  the complainant in a way which was consistent with the amended “commentary”, rather than the original instructions.

[30]     On this basis, we are satisfied that the amended “commentary” records the position reached between Ms Te Whata and the appellant on the morning of trial. The appellant may not have done much for his credibility with Ms Te Whata when it became apparent that he had tailored his instructions to her to take advantage of what he had wrongly assumed to be the absence of DNA evidence.  This may have caused some awkwardness between them.  But her mistake was remedied by the start of the trial and did not have an untoward impact on the course the trial took.

[31]     A second and related complaint about the DNA evidence is based on a letter of 7 August 2009 to the appellant from the ESR which confirms that the samples taken from the complainant were not analysed for the presence of saliva and that the appellant’s DNA could have originated from either skin cells or saliva cells.   The appellant’s position is that if he had known earlier of the ESR evidence he would have found out this information before rather than after trial and that it would have been useful at trial from a defence perspective.

[32]     This is in part a new evidence point and in part a counsel incompetence argument and it is convenient to deal with it here.

[33]     Although  the  evidence  as  given  and  the  arguments  advanced  by  the prosecutor at trial did not explicitly suggest that the appellant’s DNA had come from saliva as opposed to skin cells, the prosecution case was that the appellant had kissed the complainant on the neck and cheek and implicit in that was a contention that the DNA found in those areas came from saliva.  As well, it is clear from the appellant’s

written instructions and Ms Te Whata’s notes on the amended “commentary”, that both the appellant and Ms Te Whata assumed that his DNA had come from saliva.

[34]     A starting point for an assessment of the significance of the ESR letter is that it is not entirely easy to envisage innocent actions on the part of the appellant involving skin to skin contact between him and the complainant’s neck.    As well, and importantly, there nothing in the appellant’s statement to the police or his instructions to Ms Te Whata to suggest that his skin came into contact with the complainant’s neck.  However, in an affidavit filed in this Court which was sworn on

27  August  2009,  the  appellant,  in  discussing  what  happened  when  he  left  the property said:

I did not kiss her neck, I only touched it with the side of my face.

As is apparent from what we have already said, we consider that the appellant has been willing to tailor his accounts of events to his evolving understanding of the DNA evidence.  In this instance, we consider it significant that this claim of face to neck contact did not emerge until after he had had received the 7 August 2009 letter from the ESR.  This, is, of course, a fourth explanation (the first being to the police and the second and third being the original and the amended versions of the “commentary”).   In short, we simply do not believe his account of face to neck contact.

[35]     It is reasonable to infer that if the appellant had known at trial that the ESR analysis was not specific to saliva, he would likely have run his defence accordingly. Because the true position as to the non-specific nature of the ESR analysis was not known, he thus lost the chance to mount what we consider would have been an opportunistic and untrue defence.   It is difficult to see that as amounting to a miscarriage of justice.

[36]     In any event, we consider that the issue is of very limited materiality.  The appellant had, after all, in his statement, acknowledged kissing the complainant on her cheek.   On the complainant’s evidence he kissed her on the cheek and neck. Even Jack, whose evidence was generally reasonably favourable to the appellant, told the jury of the appellant having kissed the complainant on “head and neck and

upper chest area”.  An assumption that the DNA came from saliva was thus plausible to say the least.   And although our  conclusion that the appellant’s most recent explanation is untrue is based in part on what we know of the rather mobile instructions he gave to counsel, we have no doubt that the jury would have regarded as highly implausible a face to neck contact explanation for the DNA evidence given that such an explanation was not hinted at in his statement to the police.

[37]     Another complaint relating to Ms Te Whata’s conduct of the defence is that Ms Te Whata discouraged the appellant from giving evidence after a note had been received from the jury.  This note was given to the Judge after the Crown case had closed and Ms Te Whata had indicated that she would not be calling evidence.  The note (and we do not have a copy) apparently asked a question as to why the appellant went to the complainant’s address.  This was, as Ms Te Whata said in her evidence before us, of no moment because there was no dispute that the appellant had a legitimate reason for going to the address.  The drift of Ms Te Whata’s evidence was that this note had not prompted any discussion about re-visiting the decision to give evidence.  The appellant, who maintained that following receipt of the note he made it clear to Ms Te Whata that he should give evidence, accepts that in the end he accepted her advice not  to give evidence.   Either way, there is nothing in this incident which could be regarded as having led to a miscarriage of justice.

[38]     In a memorandum filed by the appellant after the hearing of the appeal he sought to renew a complaint which had been abandoned at the hearing.  This was as to Ms Te Whata not calling a Mr Ed Smith (who the appellant claimed went to the property on the morning of 10 January 2008).  This claim was not consistent with the evidence of Jack.  There are marked inconsistencies in what the appellant and Mr Smith have had to say as to how they arrived at the property and the credibility of the appellant  is  not  much  improved  in  this  respect  given  that  he has  now  given  a somewhat different account in his most recent memorandum.  If Mr Smith had given evidence, he would have been exposed to cross-examination on his character and previous convictions (including for the  manslaughter of Delcelia Witika, a  case which attracted a great deal of notoriety at the time).  It would not have helped the appellant in the eyes of the jury for him to be associated with such a person.   So there were very good reasons for not calling him. The complaint about Mr Smith was

appropriately not pursued at the hearing of the appeal and we consider that there is nothing in it.

[39]     Other complaints about Ms Te Whata we can reject more summarily.   In particular, we are satisfied that her preparation for trial was adequate, that there was no occasion for her to interview Jack whose evidence in any event was largely in the appellant’s  favour  and  that  there  was  no  point  to  be  served  in  calling  tikanga evidence as to the significance of hugs in Maori culture; this in the context of the complainant, but not the appellant, being Maori.

[40]     All in all we are satisfied that, notwithstanding the admitted initial error by Ms Te Whata as to the ESR evidence and her mistaken assumption that the appellant had received full disclosure, the appellant was competently represented at what was a fair trial.

Misconduct by prosecutor

[41]     The complaints about the prosecutor as developed in argument came to focus on the prosecutor opening on the basis that the appellant touched the complainant’s bottom and his treatment of the evidence of Jack.

[42]     We see nothing in either complaint.

[43]     When the prosecutor opened the case he was under the reasonable impression that the complainant would say that the appellant had touched her bottom.  As noted, she did not do so.  That the prosecutor had opened on a proposition which was not borne out was made perfectly clear to the jury and we can see no relevant prejudice to the appellant.

[44]     As noted Jack gave evidence which in part favoured the appellant but he did say that the appellant had kissed the complainant in the “head and neck and upper chest area”.   In the course of his evidence in chief, the prosecutor led a good deal of evidence as to Jack’s relationship with the appellant.   Presumably he did so to provide an explanation to the jury as why Jack had accompanied the appellant to the

complainant’s address on the day of the alleged offending.   When the prosecutor came to Jack’s evidence as to what happened between the appellant and the complainant just before he and the appellant left the premises, there were leading questions and later something of an attempt at cross-examination.  In both instances there  was  an  objection  from  Ms  Te  Whata.    Later,  towards  the  end  of  Jack’s evidence in chief, he was asked by the prosecutor as to what subsequent discussions he had with the appellant about the incident, a line of inquiry which did not result in any responses which were damaging to the appellant.

[45]     In his closing address the prosecutor accepted that Jack’s evidence was not a good fit for that of the complainant, whom Ms Te Whata had cross-examined on the basis of what she (accurately) understood that Jack was going to say.  The prosecutor dealt  with  this  by  adopting  the  response  of  the  complainant  to  that  cross- examination, which was to suggest that Jack’s evidence might have been coloured by his relationship with the appellant or by something which the appellant had said to Jack.

[46]     We see nothing of material significance in the way Jack’s evidence was led and likewise we have no difficulty with the prosecutor inviting the jury to accept the evidence of the complainant over that of Jack: see R v Eagles [2004] 2 NZLR 468 (CA).

[47]     We likewise see nothing in the allied complaint that Jack should not have been called as a prosecution witness.  Indeed, we are firmly of the view that it was to the advantage of the appellant that Jack gave evidence for the Crown rather than as a defence witness and that Ms Te Whata thus had the opportunity to cross-examine him.

The sleeping juror

[48]     At some stage during the trial, the Judge drew the attention of counsel to the fact that one of the jurors had fallen asleep.  Ms Te Whata was not aware of how long the juror had been asleep for but the appellant, in his affidavit, maintained that it was for half an hour.

[49]     As is already apparent, we do not regard the appellant as a credible witness and his account as to how long the juror was asleep is not very plausible.   If the appellant knew that a juror was asleep he could be expected to raise it with counsel pretty promptly.  Given the ordinary dynamics of a jury trial, it is difficult to see how a juror could be asleep for as long as half an hour without that being noticed by the Judge, counsel, the registrar or those sitting next to the juror.   And, even if the appellant is right and the juror was asleep that long, it would not warrant the conclusion that there had been a miscarriage of justice, this given:

(a)      The trial Judge saw no need to take any further action and was not asked to do so; and

(b)The weight that the criminal justice system places on the jury system is based on a high level confidence in the collective judgment of the jury as a whole rather than on the ability and attentiveness of each individual juror.

The possibly prejudicial effect of the Close Up programme about the appellant which was shown three weeks before trial.

[50]     On the evening of 30 March 2009, some three weeks before the appellant’s trial, the Close Up programme on Television One ran an item about the appellant. The item addressed allegations by two aggrieved consumers that the appellant had failed to complete construction work that his company, Envirotech Industries, had obtained through the internet site Trade Me.  There was a good deal of criticism of the appellant who was interviewed.  During this interview it was revealed that the appellant was “a convicted fraudster, thief and sexual offender with close to 40 convictions dating back to 1969”.

[51]     The appellant faces the unpleasant reality that his past brushes with the law have resulted in him receiving a good deal of unfavourable publicity and much of this material is accessible on the internet,  including information about his criminal history  which  is  listed  on  the  Sensible  Sentencing  Trust’s  web  page.    Indeed,

information about the Close Up programme and associated adverse comments about the appellant remain on the internet.

[52]     Contributing to the durability of information about the programme on the internet is an odd feature associated with it which we mention as an aside, albeit that it illustrates the problems which the internet provides in terms of discreditable information about people being both accessible and durable.   The appellant is a resourceful man and not bereft of a sense of humour.   It appears that he correctly anticipated  that  the  Close  Up  programme  was  going  to  involve  a  beat-up  and therefore arranged for Television One to run an advertisement for Envirotech Industries during the Close Up programme on 30 March 2009.   This incongruous juxtaposition by Television One of an exposé of Envirotech Industries along with advertising for the same company has understandably attracted comment which is likely to remain on the internet for some time.

[53]     So  an  adjournment  of  the  proceedings  in  April  this  year  would  not necessarily have resolved the more general problem of the possibility that jurors might learn of his past.  This consideration may explain what might be thought to be the strange behaviour on the part of the appellant.

[54]     While  undoubtedly  under  some  pressure  to  appear  on  the  Close  Up programme in order to provide his version of events, the appellant nonetheless did so voluntarily.  If he had alerted Television New Zealand to the fact that he had a trial which was to commence in three weeks, it is likely that the programme would have been deferred voluntarily by Television New Zealand.  If Television New Zealand had not been prepared to defer the programme until after the trial, a Court order could probably have been obtained.   But he did not seek to have the programme deferred.

[55]     As well, there is his failure to mention the programme to Ms Te Whata.  Had she been aware of the programme, she would presumably have suggested that the appellant apply for an adjournment.  Had she applied for an adjournment, it is likely enough that she would have been successful.

[56]     It was not suggested to the appellant in cross-examination before us that he deliberately refrained from seeking an adjournment with a view to reserving the point for a possible appeal.  So it would not be right to conclude that this was his motivation or that he has, in effect, set out to game the system.  On the other hand, it may well be that the appellant simply took a realistic view of the extent to which adverse material about him is easily accessible and for this reason made a pragmatic decision not to make an issue about the timing of the programme before it was broadcast or to seek an adjournment of the trial.  That indeed is our interpretation of events.

[57]     While that interpretation provides an inauspicious context for consideration of the appellant’s contention that there was a miscarriage of justice, it is not decisive. On the defence case at trial, the appellant’s behaviour with the complainant was at worst equivocal.   If the jury were aware of the appellant’s prior history of sexual offending, this may well have been of significance in their evaluation of the actus reus and mens rea issues as to indecency.

[58]     On the other hand, while it is possible, indeed, likely enough that one or more of the jurors had seen the programme, it would not necessarily follow that such a juror (or jurors) would, at trial, have recognised the appellant as having been the subject of the programme or recalled the reference to his convictions, particularly those for sexual offences.   The programme was only six minutes long, devoted considerable attention to the consumers’ stories and only mentioned the appellant’s previous convictions towards the end.  Accepting as we do that the programme was screened on national television three weeks prior to the trial, it was only broadcast once and the frequency with which stories of this kind are broadcast means that public recollection can be expected to quickly fade.

[59]     Understandably (because she was not aware of the Close Up programme and probably likewise not aware of the material about the appellant on the internet), the Judge gave the jury merely the standard directions as to determining the case solely on the basis of the evidence which was given in Court and to disregard anything said outside the Court.  While she would, no doubt, have given more extensive directions had she known about the Close Up programme, it is not certain that this would have

been of more assistance to the appellant than the low key approach that was taken. There is necessarily a risk that extensive directions may whet the curiosity of some individual jurors about a defendant and in this way cause more problems than they resolve, as suggested in R v B [2009] 1 NZLR 293 at [79] (CA).

[60]     If there had been anything which happened at trial which indicated that any juror had been influenced by extraneous material, we would have allowed the appeal. But in the absence of such evidence, we consider that we are required to rely on the conscientiousness of the jury, a reliance which is based on jury research, see for instance New Zealand Law Commission Juries in Criminal Trials (NZLC PP37 vol

2 1999) at [7.57]:

… jurors were only rarely aware of sufficient details of pre-trial publicity to enable them to form any bias or prejudgment. When they were, for the most part they reported that they consciously made an effort to put that aside and focus upon the evidence alone; and when they did not, other jurors in the process of collective deliberations generally overrode any individual bias or predetermination.

Appeal against sentence

[61]     Although the appellant’s conduct towards the complainant is towards the lower end of the culpability continuum for sexual offending, the disparity in age and experience between the appellant and the complainant and her vulnerability are of some moment.  As well, the offending plainly troubled the complainant who felt she could not stay in the unit where the offending took place and therefore moved out. That said, the offending would not itself have warranted a sentence of imprisonment for an offender with a clear record.

[62]     The appellant’s relationship with the legal system is rather too complex to summarise simply in this judgment.  He has spent a significant number of years in prison as a result of convictions for sexual violation which were later set-aside, see: R  v  Palmer  CA109/02  6  October  2005.    He  does,  however,  have  an  extensive criminal record going back to 1968 with many recorded convictions which still stand.

[63]   Usually the allowance made on sentence for previous offending is comparatively limited, largely because of the risk of the courts being seen to be punishing the prior offending twice.   But in cases which are on the cusp of imprisonment, the prior record of the offender may assume decisive significance. And, more generally, where the lead offence is an indecent assault, the practice of the courts has been to place more significance on the offender’s prior history than is usually the case with other types of offending.   The situation is analogous to sentencing practice in relation to burglary where the record of the offender forms part of a starting point exercise, see Senior v Police (2000) 18 CRNZ 340 (HC) and R v Lowe CA62/05 4 July 2005.

[64]     There can be no doubt that the appellant has a propensity to offend sexually and, as well, he has not responded in a positive way to sanctions previously imposed on him.   Given this, we are of the view that the sentence of eight months’ imprisonment was open to the Judge and that in the circumstances of this case, including a negative recommendation in the pre-sentence report, she was entitled not to commute that sentence to one of home detention.

Disposition

[65]     Accordingly the appeal against conviction and sentence is dismissed.

Solicitors:

Crown Law Office, Wellington