Rahui-Aranui v Department of Corrections

[2019] NZHC 1519

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-441-12

[2019] NZHC 1519

BETWEEN

JACKSON RAHUI-ARANUI

Appellant

AND

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	25 June 2019 (via AVL)
Counsel:	W R Hawkins for appellant F E Cleary for respondent
Judgment:	1 July 2019

RESERVED JUDGMENT OF DOBSON J

[1]    This is an appeal from a conviction entered in the District Court for breach of a condition on which the appellant was serving a sentence of home detention.1 The relevant condition was that the appellant was not, without any reasonable excuse, to associate or otherwise have contact with persons under the age of 16 without the presence or supervision of an approved informed adult.

[2]    The appeal was advanced on two grounds. First, that the District Court Judge did not adequately define what was required to establish that the appellant had had contact or association with persons under the age of 16. Arguably, breach of this condition was not a matter of absolute liability and the mens rea element would require the appellant to knowingly breach the condition in the sense of intending to have contact or association with young persons in an unsupervised context.

1      Corrections v Rahui-Aranui [2019] NZDC 6058.

RAHUI-ARANUI v CORRECTIONS [2019] NZHC 1519 [1 July 2019]

[3]    The second ground of the appeal was that the District Court Judge had failed to consider whether the appellant had a reasonable excuse for the extent of proximity between him and young people that was made out in the Department of Corrections’ prosecution.

The factual background

[4]On 11 January 2019, the appellant was sentenced on two convictions:

·     indecently assaulting a female under 12, which offence had occurred on  3 December 2015; and

·     indecently assaulting a female between the ages of 12 and 16, which offence appears to have occurred on 3 December 2017.

[5]    The appellant’s criminal history records that concurrent terms of imprisonment of 10 months had been substituted with a five month sentence of home detention. The sentence was to be served at the home of the appellant’s aunt in Napier.

[6]    I understood from counsel that the conditions applying to the sentence would have been explained to the appellant on the day of his sentencing (a Friday), and that he would then have been sent to the address at which the sentence was to be served to await induction into the sentencing on the next working day (the following Monday). When two Probation officers attended at the address to induct him into the sentence on 14 January 2019, they discovered that two young grandchildren of the appellant’s aunt were also present at the address and were apparently staying for at least part of the school holidays.

[7]    At the defended hearing of the charge before Judge Sygrove on 1 April 2019, the appellant gave evidence on the basis of which the Judge found that he understood the effect of the condition limiting the circumstances in which he could have contact or association with young people, and he also appreciated the process required to obtain approval for a supervising adult to be present. No steps had been taken to obtain the requisite consent from the Probation officers for the appellant’s aunt (the children’s grandmother) to be an approved adult. I understood from Ms Cleary that the process

for approval involves completion of certain forms and, at least generally, an interview with the proposed supervising adult. The Probation officers gleaned from the aunt that she considered herself to be an approved person.

[8]    At the conclusion of the prosecution evidence, counsel for the appellant applied for dismissal of the charge under s 147 of the Criminal Procedure Act 2011 on the ground that the evidence did not establish that the appellant had associated, or otherwise had contact, with persons under 16 years of age.

[9]    The Judge rejected the application on the basis that the Probation officers had found the two young children staying in the same house quite openly and being in the same room (apparently with others) as the appellant.

[10]   The appellant then gave evidence, the Judge found the elements of the charge made out and the conviction was entered. On the same day, the Judge reviewed the original sentence and reverted to the sentence of 10 months’ imprisonment, adding one month’s imprisonment for the breach of the condition of his home detention sentence.

Analysis

[11]   The condition in question is a special condition routinely imposed under       s 80D(4)(e) of the Sentencing Act 2002, where a sentence of home detention is to be served by an offender convicted of indecency charges against children. The purpose is to reduce the likelihood of further offending and, importantly, to afford a measure of protection for young people who may be vulnerable if exposed to unsupervised contact with persons convicted of such offending. I consider these purposes for imposing the condition to be relevant considerations in assessing the extent and circumstances of contact or association with young persons that is necessary to make out a breach.

[12]   The other ingredient in what is required to make out a breach of such a condition is that it has occurred “without any reasonable excuse”.

[13]   In a context such as this, a defendant serving a home detention sentence subject to such a condition will generally be associating with others who are residing in a

single residential dwelling for any length of time. I am not persuaded that the concept of “contact with” necessarily requires either physical touching or proof of sufficiently close physical proximity to allow that to happen. The closeness of physical proximity necessarily involved in being in the same house for any extended period will, in the absence of evidence to the contrary, lead to those individuals being in contact with each other.

[14]   It is necessary for the contact or association to be of a type that the defendant appreciates is occurring in the sense of being conscious of the presence of young people, but that does not import any requirement to establish the defendant intended to arrange or facilitate or make the extent of contact or association occur.

[15]   A reasonable excuse may arise if, for example, the association occurs without the defendant being aware of it, such as if the children are in an adjoining part of the same house, having been brought there without the defendant’s knowledge. However, those are not the circumstances here. I agree with the Judge that the requisite extent of conscious awareness by the appellant of the condition of home detention, and the presence of children that would cause him to be in breach of the condition, were made out on the evidence.

[16]   The second ground of challenge on appeal was that the Judge did not assess whether the appellant had a reasonable excuse to be in contact or association with young people. On his own evidence, he had no control over the comings and goings of others in the house so an excuse claimed to be reasonable is that he did not have control over who was there, and arrangements made by others brought him into contact or association with young people, effectively in circumstances beyond his control.

[17]   It is easy to infer from Judge Sygrove’s oral judgment that the appellant’s aunt ran the house as the family matriarch controlling who was invited to stay, how long family members remained, and how the household was organised. The Probation officers noted that she appeared to talk over the top of the appellant when they were conversing with him. It seems likely that he was sentenced to her address because there was nowhere else suitable, and it may be inferred that she agreed to have him assuming that he would be in the house on her terms. The Probation officers’

interactions with her suggest that she simply assumed herself to be an approved person for the purposes of supervising the appellant when young children were present in the house.

[18]   That scenario could provide meaningful mitigating circumstances to lessen the seriousness of the breach but cannot afford a reasonable excuse in terms of liability for the breach. Whatever his aunt’s attitude, the appellant was well aware that an approval process for a supervising adult was needed and had not been undertaken.

[19]   The Judge’s reasons do not traverse these matters explicitly, but the effect of his reasoning is essentially the same. He was not persuaded there was a reasonable excuse, and in that I agree with him.

[20]   Neither ground for the appeal against conviction for breach of the condition can be sustained. The outcome may appear harsh in that the circumstances reflect an apparently innocuous breach of the condition, with the appellant’s aunt giving every appearance of operating as an adequate supervisor of the extent of contact that was likely to occur, despite the absence of her being approved for that role. Mr Hawkins explained that an appeal against sentence was not feasible given the absence of any alternative address at which a sentence of home detention could be resumed. There is accordingly no scope for affecting the analysis by acknowledging the disproportionality of the adverse consequences for the appellant.

[21]The appeal is dismissed.

Dobson J

Solicitors:

Bramwell Bate, Hastings for appellant Crown Solicitor, Napier for respondent