Rodgers v The Queen
[2018] NZHC 1800
•19 July 2018
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
350.HTML
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2018-409-39 [2018] NZHC 1800 BETWEEN
STUART PHILLIP RODGERS
Appellant
AND
THE QUEEN
Respondent
Hearing: 12 July 2018 Appearances:
J Taylor and J Anson-Holland for Appellant I Murray for Respondent
Judgment:
19 July 2018
JUDGMENT OF MANDER J
[1] The appellant, Stuart Rodgers, appeals the making of a registration order against him under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act). Mr Rodgers pleaded guilty immediately before his trial started to a charge of indecently communicating with a 14-year-old girl.1 He also faced two charges of sexual connection with the same young person.2 He was found not guilty by a jury on those charges.
1 Crimes Act 1961, s 124A.
2 Section 134(1).
RODGERS v R [2018] NZHC 1800 [19 July 2018]
[2] Mr Rodgers was sentenced to seven months’ home detention.3 He does not appeal that sentence. However, Judge Gilbert determined that Mr Rodgers posed a risk to the sexual safety of children and made a registration order under the Act.4
Background
[3] At the time of the offending, Mr Rodgers was 37 years of age and the victim only 14 years. They lived in the same neighbourhood and came to know each other through mutual family connections. Over the course of six weeks they visited each other’s houses on a number of occasions and, over a two week period, were in regular contact via the social media platform Instagram. Sometimes Mr Rodgers would initiate contact and at other times contact was initiated by the victim. Their messages were highly sexual in nature. They included talk of explicit sexual activity with each other, and on one occasion each sent the other a picture of their genitalia.
[4] The two charges of sexual connection with a young person, upon which Mr Rodgers was acquitted, were based on an allegation that Mr Rogers digitally penetrated the girl’s vagina on two separate occasions. There was also evidence that on other occasions he had kissed and “groped” the young person. Those incidents were not the subject of charges but are referred to in the Judge’s sentencing notes.
The District Court decision
[5] In sentencing Mr Rodgers to home detention, Judge Gilbert was careful not to take into account the evidence adduced at trial that related to the sexual connection charges. However, in making his assessment of whether Mr Rodgers posed a risk to the sexual safety of children under s 9 of the Act, Judge Gilbert commented:
[23] Finally, I turn to other evidence of risk that you pose and other relevant considerations. Whilst I have been careful not to let my own view that you are fortunate to escape conviction on the primary charges affect the sentence I have imposed on you, my assessment of the evidence is relevant to the issue of future risk which is my guiding star when it comes to registration. The evidence against you was strong. To the extent that there was a doubt about you engaging in actual sexual activity with [M], in my view that doubt can only have been reasonable by a narrow margin. It follows that in my assessment you likely did offend in the way [M] has asserted.
3 R v Rodgers [2018] NZDC 6193.
4 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 9(2).
[6] After considering the mandatory considerations set out in s 9(3) of the Act, Judge Gilbert concluded:
[24] Given that you were prepared to engage in this messaging with a 14- year-old in respect of whom you were a trusted adult and given that in my assessment it is likely you crossed a line into actual physical conduct, I am satisfied that you pose a risk to the sexual safety of children in relation to whom you might have similar contact in the future. In the event that risk crystallises, the potential harm is significant.
[7] Having found the requisite risk established, a registration order was imposed. In making that decision, Judge Gilbert took the view that he was not bound by the jury’s verdicts on the sexual connection charges and was entitled, in assessing the risk Mr Rodgers posed to children, to reach his own assessment of that evidence.
[8] On his appeal, Mr Rodgers maintains Judge Gilbert erred in taking into account the evidence called at trial relating to the charges on which he was acquitted because that assessment was inconsistent with the jury’s verdicts. Before considering this issue and the respective submissions of the parties, it is necessary to set out the relevant parts of the Act.
Relevant statutory framework
[9]The purpose of the Act is set out as follows:
3 Purpose
The purpose of this Act is to establish a Child Sex Offender Register that will reduce sexual reoffending against child victims, and the risk posed by serious child sex offenders, by—
(a)providing government agencies with the information needed to monitor child sex offenders in the community, including after the completion of the sentence; and
(b)providing up-to-date information that assists the Police to more rapidly resolve cases of child sexual offending.
[10] The Act seeks to achieve its purpose by establishing a register of sexual offenders accessible to certain government agencies. A person will become a “registerable offender” on conviction for a qualifying offence if he or she:5
(a)was at least 18 years old at the time of the offending,6 and
(b)is sentenced to a term of imprisonment for the qualifying offence, or is sentenced to a non-custodial sentence for the qualifying offence and is made subject to a registration order under s 9 of the Act.7
[11]Section 9 provides:
9 Court may make registration order
(1)If a court imposes on a person a non-custodial sentence in respect of a conviction for a qualifying offence, the court may order that the person must be placed on the register and must comply with the reporting obligations of this Act.
(1A) For the purposes of subsection (1), the date on which the person was charged with the offence is irrelevant.
(2)A court may make an order under this section (a registration order) only if the court is satisfied that the person poses a risk to the lives or sexual safety of 1 or more children, or of children generally.
(3)For the purpose of assessing the risk posed by the person, the court must consider the following matters:
(a)the seriousness of the qualifying offence:
(b)the period of time that has elapsed since the offence was committed:
(c)the age of the person:
(d)the age of the person at the time of the offence:
(e)the age of any victim of the offence at the time of the offence:
(f)the difference in age between the victim and the person at the time of the offence:
(g)any written assessment of the risk posed by the person:
5 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, ss 4 and 7. Qualifying offences are set out in the second schedule to that Act.
6 Section 7(3).
7 Section 7(1).
(h)any submission or evidence from any victim of the offence:
(i)any other submission or evidence relating to the risk posed by the person:
(j)any other matter that the court considers relevant.
(4)A registration order is made at the time of sentencing and is a sentence for the purposes of Part 6 of the Criminal Procedure Act 2011 (appeals).
(5)However, for the purposes of section 31 of the Sentencing Act 2002 (general requirement to give reasons), a registration order is an other means of dealing with the offender.
(6)The provisions of subparts 4 and 12 of Part 6 of the Criminal Procedure Act 2011, so far as they are applicable and with the necessary modifications, apply to an appeal in respect of a registration order.
[12] There are therefore two stages to the Court’s decision whether to make a registration order under s 9. Firstly, the statutory threshold for the making of a registration order must be satisfied. This requires the Court to be satisfied that the person poses a risk to the lives or sexual safety of one or more children, or of children generally. If the statutory threshold is made out, the sentencing Judge has a discretion to make an order but is not obliged to do so.
[13] As a result of registration, a person becomes subject to a number of requirements under the Act. The person must report within 72 hours of becoming a registerable offender,8 and must provide specified information to the Commissioner of Police.9 The registerable offender becomes subject to periodic reporting requirements to confirm the accuracy of the information on the register.10 There is an ongoing obligation to report changes to relevant personal information, as well as any domestic
8 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 17.
9 Pursuant to s 16, the registerable offender must provide his or her name, any previous names, date of birth, contact details including address (including postal address), phone numbers, computer user names and passwords, website names, email addresses, the name of their ISP provider, details of children residing at their address, the name of the child’s caregiver, work details, details of club affiliations, details of vehicles, details of tattoos, scars, or identifying features, and their passport details.
10 Sections 18 and 19.
or overseas travel plans.11 Fingerprints and photographs can be taken,12 and the offender’s right to change his or her name is circumscribed.13
[14] The period for which a person remains subject to the obligations of registration varies according to the class of the qualifying offence in respect of which the person has been sentenced.14 Periods of registration range from eight years for offenders sentenced in respect of Class 1 offences, to registration for life for offenders imprisoned for Class 3 offences.15 It is an offence to fail to carry out reporting obligations or to provide false or misleading information.16
[15] The information contained in the register is ordinarily only available to nominated government agencies and is not available to members of the public except in specified circumstances of risk posed to children.
The appeal
[16] The essential submission made on behalf of Mr Rodgers was that Judge Gilbert was not entitled, in the face of the jury having acquitted him of the sexual connection charges, to make his own assessment of whether Mr Rodgers had committed the acts the subject of those charges when considering whether he posed a risk to the sexual safety of children. Mr Taylor on behalf of Mr Rodgers submitted the Judge was bound by the jury’s verdicts. Had Judge Gilbert put the evidence that related to that alleged offending to one side, it was submitted he could not have been satisfied the statutory criteria for making a registration order had been made out.
[17] Mr Murray on behalf of the Crown submitted that Judge Gilbert was entitled to take into account the evidence called at trial relating to Mr Rodgers’ conduct in assessing the risk Mr Rodgers poses to children. He submitted there was no inconsistency with the jury’s acquittals arising from a Judge assessing that evidence for the purpose of determining risk under s 9 of the Act; the verdicts amounted to no
11 Section 21.
12 Sections 29 and 30.
13 Section 53.
14 Section 35.
15 Section 35(1)(a)-(d).
16 Sections 39 and 40.
more than a finding that those charges had not been proved beyond reasonable doubt. Mr Murray submitted that, for the purpose of assessing risk under s 9, Judge Gilbert was entitled to conclude that, on balance, Mr Rodgers had committed those acts.
Analysis
[18] Mr Taylor submitted that s 24 of the Sentencing Act 2002 governed the approach to be taken to evidence relied upon by a Court in satisfying itself that the s 9 criteria had been established. That section provides:
24 Proof of facts
(1)In determining a sentence or other disposition of the case, a court—
(a)may accept as proved any fact that was disclosed by evidence at the trial and any facts agreed on by the prosecutor and the offender; and
(b)must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.
(2)If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—
(a)the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:
(b)if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial:
(c)the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:
...
[19] Mr Taylor argued that s 24 governed not only the factual foundation upon which Judge Gilbert was required to sentence Mr Rodgers, but also the basis upon which the Judge was required to approach his assessment of whether a registration order should be made.
The standard of satisfaction
[20] Before examining that issue, it is necessary to clarify a related issue concerning the requirement of s 9 that the Court be satisfied that a person poses a risk to the sexual safety of children. Mr Taylor, at least in his written submissions, submitted that because of the criminal context in which the Court is required to assess the question of risk and in the absence of any prescribed standard of proof in the Act, the Court was required to be satisfied beyond reasonable doubt of the requisite risk. I do not consider that is correct.
[21] I accept the question of whether a particular standard of satisfaction is to be applied is to be decided on general principles, having regard to the statutory context.17 However, I do not accept that simply because the Court is tasked with considering whether an order should be made as a result of a person having been convicted of a qualifying offence, the assessment of risk must reach a threshold of beyond reasonable doubt.
[22] The first part of the decision-making exercise required to be undertaken by the Court under s 9(2) is to be “satisfied” of a state of affairs. That requires the Court to carry out an evaluative assessment in respect of which notions of burden and standard of proof should not be imported.18 This is the approach that has been taken by the appellate Courts to the term “satisfied” when considering the imposition of other similar orders.
[23] Other than for a public protection order (which has an explicit standard of proof built into the test) no standard of proof is imported into the requirement that the Court be satisfied before making extended supervision orders (ESO) or imposing sentences of preventive detention.19 Furthermore, while not uniformly agreeing on the level of risk necessary to meet the statutory threshold for registration, the approach taken by
17 Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [96]; R v Leitch [1998] 1 NZLR 420 (CA) at 428.
18 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11], and subsequent cases, including H (CA680/11) v R [2012] NZCA 198 at [30]-[33]; Kumar v R [2015] NZCA 460 at [83] (with discussion of the issue from [77]); R v Leitch, above n 17, at 428, lines 30-36.
19 Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA); R v Leitch, above n 17.
this Court to the term “satisfied” in s 9 of the Act has not included a requirement that it be satisfied of that risk to any particular legal standard.20
[24] Nor do I consider the term “satisfied” requires a Court to reach its judgment on the basis that all the underlying facts upon which it relies to reach its decision regarding risk must be proved to any particular standard. Even in a criminal trial the Crown is not required to prove each piece of evidence in support of its case to that standard. In the sentencing context, subject to the requirements of s 24 of the Sentencing Act, a Court will commonly receive various pieces of information contained in reports and from other sources which it is entitled to take into account.
Whether s 24 of the Sentencing Act applies
[25] Returning to the question of the application of s 24 of the Sentencing Act, Mr Taylor submitted that a registration order could either be viewed as part of the sentence of an offender convicted of a qualifying offence or that, alternatively, the making of a registration order falls within the category of “other disposition of the case”. Mr Taylor relies upon commentary provided by the learned authors of Adams on Criminal Law who opine that s 24 applies to applications for orders for confiscation of vehicles and the forfeiture of instruments of crime, although no authority is cited for that proposition.21 It is notable that both types of orders are governed by the provisions of the Sentencing Act.
[26] In Mason v Police, it was held that s 24 of the Sentencing Act did not apply to the forfeiture of money found in the possession of a person convicted for a drug dealing offence under the Misuse of Drugs Act 1975.22 While acknowledging that s 24(1) potentially was of wide ambit, read in its context, Fogarty J considered it was limited to the imposition of sentence and that the term “other disposition of the case” referred to an alternative means of disposing of the case, for example, by way of a discharge without conviction, and did not include the ancillary recovery of proceeds of crime. Mr Taylor submitted that the disputed recovery of money seized from a
20 See Johnston v Police [2017] NZHC 1718; Fowler v R [2017] NZHC 1892.
21 Sentencing Act 2002, ss 128, 129 and 142N; Simon France (ed) Adams on Criminal Law – Sentencing (online loose-leaf ed, Thomson Reuters) at [SA24.09A] and [SA128.04].
22 Mason v Police HC Dunedin CRI-2009-412-36, 4 December 2009.
defendant was distinguishable from the making of a registration order. Alternatively, he invited me to find that Mason had been wrongly decided.
[27] I doubt whether s 24 applies to the decision-making process required of a Judge under s 9 of the Act. However, while it is not necessary for the purpose of deciding this appeal to come to any concluded view regarding that issue, I consider the underlying principles behind the prescription of s 24 equally apply when considering the correct approach to the use of evidence adduced at trial which may bear on the making of a registration order.
[28] Judge Gilbert heard the trial evidence, including of Mr Rodgers’ physical sexual contact with the young person. For the purpose of sentencing, if the Judge was satisfied sufficient evidence had been adduced at trial, he was entitled to accept as proved any mitigating or aggravating fact disclosed by that evidence subject to the important caveat that any such finding accorded with the jury’s verdict.
[29] In R v Heti, the Court of Appeal summarised the approach required of a Judge to the factual basis upon which sentencing is to proceed after a trial:23
A Judge who has heard the evidence in a jury trial is entitled, where the evidence supports it, to reach his view of the facts relevant to sentencing provided such view is not inconsistent with the verdict.
[30] After rejecting the proposition that a Judge was bound to accept the version most favourable to an offender, the Court of Appeal affirmed that a Judge must not take a view which conflicts with the jury’s verdict.24 A sentencing Court may adopt any view of the facts consistent with the evidence which is not inconsistent with the verdict, unless the verdict clearly implies that a jury has adopted a particular view of the facts; in such a case, the sentencer must proceed on that factual basis.
[31] In B (CA58/2016) v R, the Court of Appeal confirmed this approach and cited with approval that court’s earlier statement in R v Connelly.25 The Judge in a jury trial is effectively the 13th fact-finder and is entitled to reach his or her view of the facts
23 R v Heti [1992] 8 CRNZ 554 (CA) at 554.
24 At 554, citing R v Harris [1961] VR 326.
25 B (CA58/2016) v R [2016] NZCA 432 at [75]; R v Connelly [2008] NZCA 550 at [40].
provided that such view is not inconsistent with the verdict. The Judge is not bound to accept a version of facts more favourable to the prisoner, but must determine the relevant facts within the bounds of the jury’s verdicts.26
[32] In the present case, the essential issue on the appeal distils to whether the Judge’s conclusion that it was likely Mr Rodgers did have sexual connection with the young person was inconsistent with the jury’s verdicts. The Judge rightly found himself bound by those verdicts in imposing sentence on Mr Rodgers. However, he did not consider that his assessment of the evidence, insofar as it was relevant to the issue of the future risk Mr Rogers may pose to children, was constrained by the outcome of the trial.
[33] The Crown endorsed Judge Gilbert’s approach on the basis that the essential quality of an acquittal is a failure to prove the charge beyond reasonable doubt which is not to be equated to the finding of a fact for the purpose of making an assessment of risk under s 9 of the Act. Mr Murray submitted the evidence called at trial fell into the category of mandatory items, namely “evidence of a victim of the offence” or “evidence relating to the risk posed by the person” which a Court must consider for the purpose of assessing the risk.27
The presumption of innocence
[34] Section 25(c) of the New Zealand Bill of Rights Act 1990 provides that it is a minimum standard of criminal procedure that everybody who is charged with an offence has, in relation to the determination of that charge, the right to be presumed innocent until proved guilty according to law. Kos J, in Taueki v Police, held there is “no warrant” to read those words restrictively so as to confine them to the trial phase of the criminal justice process.28
[35] It is trite to observe that the presumption of innocence is recognised as the “one golden thread” running “throughout the web” of the criminal law.29 The presumption
26 B (CA58/2016) v R, above n 25, at [76].
27 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 9(3)(h) and (i).
28 Taueki v Police [2015] NZHC 1062 at [20].
29 Woolmington v DPP [1935] AC 462 (HL), at 481, per Viscount Sankey.
of innocence can only be overcome by the prosecution discharging the burden upon it to prove the charge beyond reasonable doubt.30 At the commencement of Mr Rodgers’ trial he was presumed innocent of the two charges of sexual connection with a young person. Upon the jury returning verdicts of not guilty that presumption of innocence remained intact because it can only be rebutted if the acts that constitute the charges are proved to the criminal standard of beyond reasonable doubt.
[36] I consider the fundamental principle of the presumption of innocence, if only pursuant to the common law, continues to have application when considering the invocation of statutory powers at the conclusion of the criminal process. This would, in my view, include the question of registration under the Act, which is to be assessed only after a person has been convicted of a qualifying offence. In reaching that conclusion, I note the Court of Appeal’s observation that the effect of registration is punitive, even if its primary purpose is the protection of further potential victims.31
Decision
[37] In considering whether to make an order under s 9 of the Act, the Court continued to exercise its criminal jurisdiction over Mr Rodgers as a result of him being convicted of a qualifying offence. In exercising that jurisdiction, and in particular when assessing whether Mr Rodgers is a person who poses a risk to the sexual safety of children, the Court must do so on the basis that his presumed innocence of the charges of sexual connection with a young person remains unrebutted. That was the effect of the jury acquitting him on those charges.
[38] Because the Crown failed to overcome the presumption of innocence by proving the sexual connection charges beyond reasonable doubt it follows that any finding reliant on any lesser standard of proof cannot displace the presumption of innocence. To approach that factual issue on any other basis would be inconsistent with the jury’s verdicts. Such a finding based upon a lesser threshold of proof was not, in my view, available to the Judge for the purpose of assessing risk under s 9.
30 Sabapathee v The State [1999] 1 WLR 1836 (PC), at 1840.
31 Bell v R [2017] NZCA 90 at [26]; see also Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Child Protection (Child Sex Offender Government Agency Registration) Amendment Bill (6 May 2015) at [11].
[39] Just as the Judge correctly proceeded on the basis that he was required to sentence Mr Rodgers only on the charge upon which he had admitted his guilt, the Court was also precluded from proceeding to assess the issue of the making of a registration order on any basis other than that Mr Rodgers was innocent of the sexual connection charges. To proceed otherwise would be to ignore that the Court, in continuing to exercise its jurisdiction over Mr Rodgers under s 9, was bound by the jury’s verdicts. The acquittals did not only represent a failure to prove the charges beyond reasonable doubt but also left intact Mr Rogers’ entitlement to rely on his presumed innocence while he remained subject to the criminal jurisdiction of the Court.
[40] I have expressed my doubt regarding the application of s 24 of the Sentencing Act, in large part because I consider the situation in the present case is more fundamental than simply an issue of proof of facts. However, the requirement that a prosecutor prove the existence of a disputed aggravating fact beyond reasonable doubt is consistent with the approach that I have taken to the continued application of the presumption of innocence in the absence of the Crown proving the charge beyond reasonable doubt.
[41] I am fortified in the view that I have taken by the approach of the English Court of Appeal in R (Mullen) v Secretary of State for Home Department.32 That case involved a claim for compensation for wrongful conviction. Under the applicable statutory provision, a person could claim compensation after being wrongfully convicted. The defendant had been convicted and imprisoned for serious offences but had later been successful in having his conviction quashed as an abuse of process because of the illegal manner in which he had been kidnapped in a foreign jurisdiction and brought before the English trial court.
[42] The Court of Appeal relied on the presumption of innocence of everyone “charged with a criminal offence” as expressed in the Human Rights Act 1998 (UK). In finding that the presumption of innocence still applied in the context of a claim for compensation arising out of a miscarriage of justice the Court held:33
32 R (Mullen) v Secretary of State for Home Department [2002] EWCA Civ 1882.
33 At [33].
…The trial and appellate process are designed to reduce to the minimum the occasions when a person is convicted of a crime which he did not commit. There is no doubt that throughout that process the presumption of innocence prevailed. The question however arises whether and to what extent that presumption applies outside the criminal process.
[43]In addressing itself to that question the Court concluded:34
In a case where this Court has quashed a conviction the presumption of innocence requires that Acts of Parliament are to be interpreted on the basis that it is not intended that the State should proceed on the basis that a wrongly convicted man is guilty.
[44] The House of Lords subsequently upheld the Secretary of State’s decision not to award compensation to the defendant notwithstanding that his conviction had been quashed.35 However, that result was based on the interpretation of the Secretary’s statutory powers. The Court of Appeal’s observation regarding the effect of the presumption of innocence remained undisturbed.
[45] The English Court of Appeal’s finding that the presumption of innocence continued to apply, notwithstanding the defendant’s conviction being overturned for a reason unrelated to his innocence, has considerably more force where a person has been acquitted of criminal charges but remains subject to the criminal process for the purpose of making an order ancillary to his or her conviction on a lesser offence.
[46] Arguably, the making of a registration order is akin to the making of an ESO. It is also focussed on similar considerations that are to the fore in assessing the appropriateness of a sentence of preventive detention, namely the assessment of risk. The Court’s continued jurisdiction over the offender arises from the person’s conviction of a criminal offence. However, it is not suggested that for the purposes of making an ESO, nor when assessing the risk of reoffending and the safety of the public, a Court could take into account alleged offending of which the offender has been acquitted. Even if the Judge who heard the trial considered themselves well placed to assess the likelihood of the offender having committed the acts that constitute the offence, it would not be legitimate for a Court to exercise its jurisdiction over a person on the basis that he had committed those offences.
34 At [42]
35 R v Secretary of State for the Home Department, ex parte Mullen [2004] UKHL 18, [2005] 1 AC 1.
[47] For these reasons, I consider Judge Gilbert was obliged to recognise Mr Rodgers’ continued entitlement to the presumption of innocence as it related to the sexual connection charges in the wake of the jury’s acquittals, as he did in his approach to the imposition of sentence. I do not consider he was permitted to take those unproven criminal charges into account in assessing the issue of risk. The application of the civil standard on the balance of probabilities was insufficient to rebut the presumption of innocence to which Mr Rodgers was still entitled at the time the Court undertook its consideration of whether to make a registration order. I therefore consider the Judge erred in his approach to the assessment of the threshold of whether Mr Rodgers posed a risk to the sexual safety of children.
Disposition of the appeal
[48] Having determined that the Judge erred, the issue arises whether upon a fresh examination an order should be made. Both Mr Taylor and Mr Murray made submissions which addressed that issue. Mr Taylor submitted that in the absence of the Court being able to rely upon the evidence relating to the two sexual connection charges, it could not have been satisfied that Mr Rodgers posed the necessary risk for the making of a registration order. Mr Murray, to the contrary, submitted even without reliance on that conduct the Court was entitled to conclude that the statutory threshold for the making of an order had been met.36
[49] For the purpose of reassessing whether a registration order should be imposed on Mr Rodgers, the evidence as it relates to the charges of sexual connection with a young person must be put to one side. However, a difficulty arises regarding the status of other events mentioned in Judge Gilbert’s sentencing decision concerning occasions, other than those the subject of charges, when Mr Rodgers allegedly kissed the 14-year-old and had some form of physical contact with her.
[50] These incidents were not the subject of charges and the jury was not required to return verdicts or make findings in respect of that conduct. Because I have no knowledge of the trial evidence or the respective cases of the Crown and the defence
36 Johnston v Police, above n 20; Fowler v R, above n 20; Escott v R [2017] NZHC 2853; Dayaratne v R [2018] NZHC 563; Goose v Police [2017] NZHC 2453; and Praditsin v New Zealand Customs Service [2017] NZHC 48.
as presented at trial, I am unsure whether factual findings as to whether such conduct took place would be inconsistent with the jury’s verdict. That evidence, at least potentially, may be available to be taken into account, together with the other circumstances relating to the charge of exposing the young person to indecent material, when assessing the issue of risk.
[51] Apart from the references in the sentencing decision, I have no further knowledge of that conduct. I do not know the extent to which that behaviour was canvassed in the evidence or was the subject of questioning. I note Judge Gilbert put that evidence to one side for the purpose of imposing sentence. However, in the absence of any determination by the jury, that evidence may remain available for assessment by the “13th trier of fact” for the purpose of carrying out the assessment of risk under s 9 of the Act.
[52] The evidence relating to that less intrusive conduct may simply be incompatible with the jury’s verdicts on the sexual connection charges. On the other hand, I do not consider Mr Rodgers can immunise himself from relevant evidence simply because he chose to plead guilty to the qualifying offence before being given in charge of the jury.37 The nature of the relationship that he developed with the young person at the time he was engaged in indecently communicating with her, and the extent to which that relationship developed, would be relevant features when assessing both the qualifying offending and the risk Mr Rodgers may pose to children.
[53] I consider in the unusual circumstances of this case, the best course is to remit the order to the District Court with a direction that it reconsider whether a registration order should be made. In undertaking that exercise afresh, the District Court may not have regard to the offending upon which Mr Rodgers was acquitted. However, depending upon its assessment of the evidence, and taking into account the considerations I have canvassed, it may have regard to the other alleged physical conduct involving the young person and Mr Rodgers. In making that assessment, I emphasise the trial Court would need to be satisfied that any such findings would not be inconsistent with the jury’s verdicts on the sexual connection charges.
37 Criminal Procedure Act 2011, s 5.
Result
[54] The appeal is allowed. There will be an order remitting the registration order back to the District Court for its re-examination in accordance with my directions as to the manner in which that reassessment is to be undertaken.38
Solicitors:
Wynn Williams, Christchurch
Ian Murray Barrister, Wellington
38 Criminal Procedure Act 2011, s 251.
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