R v The Queen

[2019] NZHC 2464

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2019-483-10

[2019] NZHC 2464

R

v

THE QUEEN

Hearing:	24 September 2019
Appearances:	R R M Simon for Appellant R N Benic for Respondent
Judgment:	30 September 2019

JUDGMENT OF CLARK J

Introduction

[1]    On 31 July 2019 R was sentenced before Judge Crayton in the District Court at Whanganui to 18 months’ imprisonment1 in respect of one charge of doing an indecent act with a girl under 12 and three charges of doing an indecent act with a young person under the age of 16.2 The victims were his daughters.

1      R v R [2019] NZDC 14842.

2      Crimes Act 1961, s 132(3), maximum penalty 10 years imprisonment; s 134(3), maximum penalty 7 years imprisonment.

R v R [2019] NZHC 2464 [30 September 2019]

[2]    R appeals his sentence on the grounds the Judge was wrong to impose a sentence of imprisonment and erred in concluding R did not begin to address the drivers of his offending and ought to have imposed a sentence of home detention.

[3]    The Crown submits it was open to the Judge to impose a sentence of imprisonment and a sentence of home detention would not adequately achieve the relevant purposes and principles of sentencing.

Factual background

[4]    The offending occurred in 2017 and 2018 when the girls were aged 11 and 14. The daughters lived with their mother, R’s ex-partner, but stayed with R every second weekend.

[5]    In December 2017 the 11-year-old was staying at her grandparents’ house. She was lying on a mattress on the floor when R lay down next to her. He put his hand under her bra and cupped her breast with his fingers. She was frightened and pretended to be asleep. R continued to hold his hand on her breast for five minutes.

[6]    On 22 June 2018 the girls were staying with R at his home. R had been drinking that night. He gave his 14-year-old daughter a drink of Coke with bourbon in it. After she went to bed, he continued drinking. Later that night R got into bed with his sleeping daughter. He pushed his groin against her and she said she could feel his penis pushing against her. He put a hand on her bottom and moved a hand over her clothing to the vicinity of her vagina. He then put his hands under her top to feel her breasts. She said she was upset, frightened and felt sick.

[7]    In explanation R said he simply could not remember either incident. He stated he often drinks to excess and will wake in the morning having forgotten the events of the night before. R also said he did not think his daughters would have been lying as they were both truthful people.

Sentence under appeal

[8]    Judge Crayton’s primary focus was on whether the 18 month sentence of imprisonment, which he had earlier indicated in a sentencing indication, should be commuted to home detention. Factors to be considered were:

(a)the need for deterrence, protection of the community and consistency with sentences for similar offending; and

(b)R’s response to his conviction because that would inform the Judge whether commuting to home detention would meet the purposes and principles of sentence the Judge had identified as relevant.3

[9]    Factors to be weighed in the balance were that the offending was on two separate occasions, involving two victims. Alcohol was involved, there was a breach of trust “at the highest level” and serious harm to the victims.4

[10]   The pre-sentence report was “realistic”. The report indicated R was willing to attend treatment and that he acknowledged the offending. Overall R was assessed at low risk of reoffending providing his offending triggers (alcohol, sexual arousal and relationship difficulties) could be addressed. The Judge also acknowledged R had engaged with counselling in order to address his difficulties with alcohol.

[11]   Weighing against home detention was that R had failed to accept the fact of his sexual arousal at the time of offending and showed limited insight into the impact of his offending on the victims.5

[12]   The Judge concluded the relevant purposes and principles of sentencing would not be met by a sentence of home detention and imposed an end sentence of 18 months imprisonment with release conditions directed towards counselling or treatment.6

3 At [2].

4 At [3].

5 At [6].

6      At [1] and [13].

Relevant law

[13]   As R’s end sentence is a short-term sentence of imprisonment, home detention is available as a sentencing option under s 15A of the Sentencing Act 2002. Section 15A provides:

15A     Sentence of home detention

(1)If a court is lawfully entitled under this or any other enactment to impose a sentence of home detention, it may impose a sentence of home detention only if—

(a)the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and

(b)the court would otherwise sentence the offender to a short- term sentence of imprisonment.

(2)This section is subject to any provision in this or any other enactment that—

(a)provides a presumption in favour of or against imposing a sentence of home detention in relation to a particular offence; or

(b)requires a court to impose a sentence of imprisonment in relation to a particular offence.

[14]   There is no presumption in favour of home detention being imposed.7 It is ultimately a matter of discretion and an “evaluative assessment of all the circumstances” is required.8

Analysis

[15]   For R, Ms Simon  filed  detailed  written  submissions.  In  oral  argument  Ms Simon emphasised that the three factors the Judge considered weighed against home detention, should not have negated the possibility of home detention. I address this argument first.

7      R v Stacey [2008] NZCA 465 at [21].

8      R v Risschop [2008] NZCA 229, [2008] BCL 831 at [18]–[19].

[16]   Although Judge Crayton acknowledged “the positives” in the pre-sentence report, there remained matters that caused him “great concern”:9

(a)The first is this, that your acknowledgment of offending is an acceptance that your victims would not lie. You do not profess to have any memory of the offending.

(b)The second is that you do not seem to accept any sexual arousal at the time of the offending. There can be no question that the motivation, and the clear motivation, would be, and has to be, sexually motivated. There would be no other reason to touch your children in that way.

(c)The third aspect is that you have not come, it seems, to understand the impact of your offending on your victims. What is identified is that you show limited insight into the long-term impact of your behaviour. The report writer identifies that you disclose concern for yourself and your own safety. Your remorse is assessed as genuine, but more towards your own situation rather than to the victims of your offending.

[17]   These passages convey the real reservations the Judge held as to R’s acceptance of his offending and therefore his potential for rehabilitation. The Judge’s reservation is even more explicit in his subsequent observation:10

… You in fact have not been able to bring yourself to tell anybody, other than your parents and sister, of your offending. This is something which is plain as I have identified: there does not appear to be, as yet in you, either an acknowledgement of the reason for your offending or of the harm it causes.

[18]   Ms Simon submits that R’s position was reasonable. He could not remember the offending, yet he accepted the charges and entered guilty pleas based on statements made by the victims.

[19]   R’s guilty pleas did not convey to Judge Crayton, and do not convey to me, his acceptance of responsibility for sexually assaulting his daughters. It may well be that R does not remember the offending. But more importantly, it seems the point the Judge was making was that R was attempting to distance himself from the offending and shift away blame or responsibility by focusing on alcohol-related confusion and memory loss. That is demonstrated in the summary of facts, which records R’s explanation as to the offending: “he said he believed that his intoxication levels may

9      R v R, above n 1, at [6].

10 At [7].

have contributed to the fact he thought he was in bed with his partner and not his daughters both times”.

[20]   Ms Simon also takes issue with the Judge’s concern that R did not accept he was sexually aroused at the time of the offending. Ms Simon says that should not have been a barrier to home detention being seriously considered as “that is what WellStop counselling would address”. I do not accept that submission. The Judge was entitled to assess R’s rehabilitative potential at the time of sentencing, without assuming the success of potential counselling efforts. Counselling may be unsuccessful in rehabilitating R. Sexual arousal, as the pre-sentence report observed, is an offending- related factor. R’s failure to acknowledge that factor is concerning and may be seen as inhibiting rehabilitative potential.

[21]   Finally, Ms Simon argues that the Judge mischaracterised R’s understanding of the impact his offending had had on his daughters. Ms Simon submits R “clearly accepts the statements made by his children”. Ms Simon highlighted what she characterised as “key considerations” in the pre-sentence report: that R “accepted responsibility for his actions” and was willing to attend any treatment recommended; and that R commented his offending was “weird” and out of character for him.

[22]   I observe the presentence report writer described R as showing limited insight into the long-term impact of his behaviour on his daughters “which was concerning”. The remorse he showed appeared to be in relation to himself and the situation he found himself in, rather than regret for his victims. I do not regard R’s comments to the report writer, or his acceptance of his daughters’ statements, as revealing an understanding of the impact of his offending. The victim impact statements were read at sentencing. The descriptions by these young children in their young handwriting, of the impact on them is sad to read, and to contemplate. Clearly, in their minds, they no longer have a father in whom to trust and to look to for protection. As Mr Benic pointed out, it was available to R to acknowledge the harm he had inflicted on them. Such an acknowledgment is qualitatively different from being remorseful at being seen as a sex offender. Again, that lack of understanding may well represent a barrier to rehabilitation.

[23]   I share the Judge’s assessment of the offending. There were two separate occasions, spanning six months, involving two different victims. The second occasion was aggravated by an element of premeditation because the daughter was given alcohol. As Judge Crayton stated, while the nature of the touching was not “at the highest level”, nor was it fleeting or minor. Not having addressed the drivers of his offending, R had not adequately responded to what Ms Simon characterised as the “challenge” issued to R in the sentence indication. I do not accept R’s position, that he could not address the “huge driver” (as Ms Simon put it), of sexual arousal due to financial incapacity. Nor do I draw assistance from Goose v New Zealand Police, which Ms Simon cited.11 Mr Goose was 17 and 19 when he sexually offended in relation to young boys. He disclosed some of the conduct himself. Significantly, he admitted to trying to stop but still felt urges. His “immaturity and limited understanding” were recognised and he himself had made contact with WellStop providers.12

[24]   R may be commended for taking steps to address his problematic substance abuse, but the indications that R seeks to distance himself from the offending (“I’m not that kind of person”13) are concerning and tell against the sentence of home detention he seeks. R has not established error in the sentence imposed.

[25]Accordingly, the appeal is dismissed.

Karen Clark J

Solicitors:

Raukawa Simon, Whanganui for Appellant Crown Solicitor, Whanganui for Respondent

11     Goose v New Zealand Police [2017] NZHC 2453.

12 At [14].

13     Said to the pre-sentence report writer. Presentence report.