R v Roger Howard McEwen

[2003] NZCA 113

IN THE COURT OF APPEAL OF NEW ZEALAND

CA135/03

THE QUEEN

v

ROGER HOWARD MCEWEN

Hearing:19 June 2003

Coram:Glazebrook J
Heath J
Doogue J

Appearances:  D G Harvey for Appellant

M F Laracy for Crown

Judgment:19 June 2003 

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

INTRODUCTION

[1]        Mr McEwen was convicted, after a jury trial in the Palmerston North District Court, of a representative charge of indecent assault of a girl under 12 years.  He was sentenced on 20 March 2003 to fifteen months imprisonment and was refused leave to apply for home detention, although the commencement of the sentence was deferred until 1 May 2003 on humanitarian grounds.  Mr McEwen appeals against his sentence.  He has been on bail pending appeal.

Sentencing remarks

[2]       The victim of the offending was the ten-year-old daughter of a woman with whom Mr McEwen was having a relationship but did not live.  While the charge was a representative charge Mr McEwen was sentenced by the judge on the basis of only one indecent assault having been proved beyond reasonable doubt, being touching in the genital area over clothing.

[3]       The judge considered that this touching was a gross breach of trust, a factor requiring denunciation and deterrence.  After taking into account mitigating factors a sentence of fifteen months imprisonment was imposed.  On the question of home detention the judge was of the view that the nature of the conviction, involving as it did a breach of trust, and community concerns about sexual offending against children made it inappropriate to grant leave to apply for home detention.

Appellant’s submissions

[4]       Mr Harvey, for Mr McEwen, had three submissions.  He submitted first that  the sentence of fifteen months imprisonment is manifestly excessive.  Secondly he submitted that leave to apply for home detention should have been granted and finally he asked that the start date of that sentence of imprisonment be deferred under s100 of the Sentencing Act 2002 to allow the application for home detention to be considered.

[5]       In relation to the length of the sentence Mr Harvey submitted that the sentence was manifestly excessive in the circumstances.  The touching was relatively fleeting and on top of the clothing.  Mr McEwen had no similar convictions or indeed any other criminal convictions.  Additionally he was not being sentenced for a course of conduct.

[6]       Turning to the decision not to grant Mr McEwen leave to apply for home detention, Mr Harvey submitted that the sentencing judge did not direct his mind adequately to s97 of the Sentencing Act 2002.  Although the judge referred to the nature of the conviction he did not appear to direct his mind to the particular circumstances of the offence in question which is at the bottom end of the scale for offences of this type.  Additionally he did not appear to have taken into account the circumstances or background of the offender and did not refer to the Victim Impact statement which contained nothing that would militate against the granting of leave to apply for home detention.

[7]       Mr Harvey also drew attention to matters that he said were not before the Court on sentencing.  He accepted that this information could have been put before the sentencing judge but the family had not provided it to him until after sentencing.  The additional information was as follows.  Mr McEwen’s parents had offered their house as security for a loan enabling Mr McEwen to build his house with Mr McEwen meeting the mortgage payments.  The parents were unable to make those payments if Mr McEwen was imprisoned and would have to sell land of their own to enable the mortgage to be paid.  Additionally Mr McEwen’s current partner, who has just had their baby, has minor brain damage from birth, suffers a learning disability and becomes stressed over minor matters.  She relies on Mr McEwen for support and needs his help at times when she either forgets or is unsure about the baby’s care.  She lacks self-confidence due to her upbringing and is peculiarly susceptible to pressure.  During her teenage years she attempted suicide on three occasions and was left with a speech impediment after the last attempt.  She has found the whole Court process stressful and is terrified of what might happen if Mr McEwen was sentenced to an actual term of imprisonment.  Additionally Mr McEwen’s partner has no assets of her own and no independent means of support, effectively relying on Mr McEwen for everything.  A benefit would not allow her to take over Mr McEwen’s financial responsibilities.

[8]       Finally, on the question of a s100 deferral, it became apparent during the hearing that s100(4)(b) appears to preclude any deferral of the start date of a sentence of imprisonment if this Court quashed the sentence of fifteen months imprisonment and substituted a lesser sentence.  Section 100(4)(b) provides that no court may defer the start date of a sentence of imprisonment if that sentence is imposed in substitution for a sentence of imprisonment that has been quashed or set aside.

[9]       Mr Harvey, after taking instructions from his client, indicated that he did not wish to have the opportunity to make any further submissions on whether s100(4)(b) did preclude a deferral if the appeal as to the length of sentence succeeded.  He accepted that the Court should proceed on the basis that it did.  Further, Mr Harvey said that his client would prefer that this Court grant leave to apply for home detention and a deferral under s100(1)(b) rather than a reduction in sentence which would then preclude the operation of a s100 deferral.

Crown submissions

[10]     Ms Laracy for the Crown submitted that the term of fifteen months imprisonment was available whilst acknowledging that it was at the very top of the range for a single incident of indecent assault of this nature.

[11]     In regard to the decision of the sentencing Judge in declining to grant leave to apply for home detention, Ms Laracy submitted that the factors which influenced the judge to decline leave were matters that he was entitled to take into account, namely the seriousness of the offence aggravated by the breach of trust and the community’s concern at sexual offending against children.

[12]     Finally Ms Laracy submitted that, if this Court granted Mr McEwen leave to apply for home detention, the Crown would not oppose the deferral of the start date of the sentence, having regard to the personal situation of Mr McEwen and the additional material placed before the Court by his counsel.

DISCUSSION

[13]     We examine first the question of whether the judge should have given Mr McEwen leave to apply for home detention.  In declining leave the sentencing judge merely stated that the nature of the conviction was such that it would not be appropriate to grant leave.  Section 97(3) has the effect of a presumption in favour of granting leave.  While this can be rebutted a Court has to be mindful of that presumption.  It does not appear to us that the sentencing judge approached the issue of leave on this basis.  Offending of a sexual nature against a child is of course very serious, particularly if it involves a gross breach of trust.  Mr McEwen was, however, sentenced on the basis of a relatively brief touching on the outside of clothing.  This therefore was by no means the most serious offending of its type.  Without more this may not have been sufficient to rebut the presumption in favour of granting leave.  In addition, the sentencing judge did not have before him the extra material that has now been put before us in respect of the situation of Mr McEwen’s parents and in particular that of Mr McEwen’s current partner.  In the circumstances therefore we consider that leave to apply for home detention should have been granted. 

[14]     We also consider a s100 deferral appropriate, given the fact that Mr McEwen is in employment and also having regard to his personal and family situation.  We are conscious that Mr McEwen has already been granted a deferral under s100(1)(a) on humanitarian grounds.  We do not see this as precluding us from granting an additional deferral on the alternative grounds of s100(1)(b).

[15]     It is clear that a prompt disposal of this appeal is preferable.  For that reason, in accordance with Mr Harvey’s request, we do not consider the appeal in respect of the length of the sentence.  We note that we express no final view as to whether s100(4)(b) would have prevented a deferral of start date if the length of the sentence had been reduced.

Result

[16]     The sentence appeal is allowed to the extent that Mr McEwen is granted leave to apply for home detention.  Under s100 the start date of his sentence of imprisonment is deferred for the lesser of two months from the date of this judgment or until the Parole Board has made its decision on home detention.

Solicitors:
D G Harvey, Palmerston North for Appellant

Crown Law Office, Wellington