Shankar v Police
[2024] NZHC 1379
•29 May 2024
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-119
[2024] NZHC 1379
BETWEEN NEIL SHANKAR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 27 May 2024 Counsel:
J L Holden for Appellant
L S Seybold for Respondent
Judgment:
29 May 2024
JUDGMENT OF BREWER J
This judgment was delivered by me on 29 May 2024 at 11 am
Registrar/Deputy Registrar
Solicitors/Counsel:
Jennifer Holden (Auckland) for Appellant Meredith Connell (Auckland) for Respondent
SHANKAR v POLICE [2024] NZHC 1379 [29 May 2024]
Introduction
[1] On 13 March 2024, Judge Lummis sentenced Mr Shankar to seven months’ home detention on a charge of doing an indecent act on a young person.1 The maximum sentence is seven years’ imprisonment. The Judge also directed that Mr Shankar be placed on the Child Sex Offender Register.
[2]Mr Shankar now appeals his sentence and his placement on the Register.
[3]The grounds of appeal are:
(a)That the Judge did not give sufficient discount for Mr Shankar’s previous good character and efforts at rehabilitation;
(b)That the sentence of home detention was manifestly excessive; and
(a) That when assessing the factors under s 9(3) the Act, the appellant does not pose a risk to lives or sexual safety of one or more children, and therefore he should not have been registered under the Act.
The offending
[4] The offending occurred in 2014 at which time the female complainant was 13 years old and Mr Shankar was 41 years old.
[5] According to the summary of facts, the complainant and a male associate were at the Hunter Plaza in Papatoetoe when they approached Mr Shankar and asked him for money. Mr Shankar responded by buying the complainant and her associate food from McDonalds. He then took them to a liquor store and bought bourbon and cola drinks. After that, Mr Shankar suggested they all go to Mt Wellington because he knew too many people in Papatoetoe. They caught a bus but, at Penrose, Mr Shankar caused them all to get off the bus. They went to another liquor store and Mr Shankar had the complainant go with him into the chiller to choose what she wanted to drink.
1 Police v Shankar [2024] NZDC 7043.
[6] Once in the chiller, Mr Shankar faced the complainant and asked, “Are you going to fuck me for $1,500?” The complainant was shocked and just stood there. Mr Shankar touched her breasts and vagina with his hands over the top of her clothing.
[7] The complainant left the chiller and the shop. Mr Shankar bought a further 12 bourbon and colas and a packet of cigarettes.
[8] The complainant and her associate then accompanied Mr Shankar to an address where a brick wall provided cover from the road. The three consumed alcohol there for approximately an hour before Mr Shankar asked the complainant’s associate to leave them alone.
[9] The complainant continued drinking and Mr Shankar touched her again around the breast and vagina area. When the associate returned, he saw Mr Shankar with his arms around the complainant.
[10] Mr Shankar quickly removed his hands and, because the complainant was visibly upset, her associate took her away.
[11] The complainant told her associate what Mr Shankar had done to her and the associate confronted Mr Shankar. In response to a threat by the associate to call the police, Mr Shankar bought the associate cigarettes, more alcohol and gave him $50 in return for not calling the police.
[12] Mr Shankar then attempted to walk away but the associate grabbed his shoulder bag causing his phone to fall on to the ground. The associate grabbed the phone and Mr Shankar left.
[13]A member of the public saw this and called the police.
[14]The charge against Mr Shankar was not laid until 30 October 2021.
The Judge’s decision
[15] The sentencing on 13 March 2024 followed Mr Shankar’s acceptance of the Judge’s sentence indication given on 27 June 2023. The Judge said:
[5] In that indication, based on the aggravating factors of the age disparity and the extent of the touching, I found an appropriate starting point was 18 months’ imprisonment. From that I indicated there would be a guilty plea credit of 15 per cent and it may be that there were further credits available at sentencing. Your lawyer now seeks a further 10 per cent for your good character and your lack of previous convictions.
[16] The Judge considered Mr Shankar’s personal characteristics and said:
[8] On the material that I have before me, I am prepared to allow a small discount for your lack of prior convictions, and that will be a discount of five per cent, but that also takes into account that there has now been an effort to engage in rehabilitation. It has been difficult because you have had some health challenges and I know you were assaulted recently this year, so that has been challenging for you as well.
[9] Taking a 20 per cent discount from 18 months reduces the sentence to somewhere just over 14 months’ imprisonment. From that I indicated if the pre-sentence report was positive, the likely outcome was home detention. That is the easy part of the sentencing. I am going to sentence you to seven months’ home detention.
[17] The Judge then turned in detail to the issue of whether Mr Shankar should be placed on the Register:
[14] I then turn to this question of registration which is perhaps the critical question for sentencing today. Registration becomes discretionary when I impose a non-custodial sentence. I must look at s 9 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 to decide whether or not you pose a risk to the lives or sexual safety of one or more children, or of children generally.
[15] Your lawyer points to the fact that it happened such a long time ago; that there has been nothing in the interim; and the psychological report as supporting non-registration. The prosecution says that when you go through the assessment process, that there should be registration in terms of the seriousness of the offence.
[16] There is a concern that you have touched the victim’s breasts and vagina, I think, skin-on-skin with the breasts, but over the top of clothing in terms of her genital area; the offending has been in public places; and you have given the victim alcohol and you told her not to call the police. Those were things I was concerned about when I set the start point.
[17] As I said, your lawyer highlights that the offending happened way back in 2014, but the prosecution submits that the time lapse needs to be balanced against the fact that it is serious offending. You are currently 52 years of age. At the time you were 41 and the victim was 13, so there was a significant 28-year age gap between you, and that is of concern.
[18] Most importantly when I am looking at registration, I need to take into account any risk assessments that I have. The Probation Service do a very basic risk assessment and they have assessed you as being a low risk of reoffending on the basis that this is your first offence before the Court and the contributing factors being identified as alcohol, poor judgement and loneliness.
[19] I now know, with the further information before the Court, that this offending happened at a time where you were in New Zealand before your wife had come to join you and that may have contributed to what went on. It is not known or is not in the information that the Court has why you left Fiji and what triggered your move to New Zealand, so I am unable to factor that into any assessment I make.
[20] I do have a more detailed risk assessment undertaken by Jim van Rensburg, a registered clinical psychologist, dated 9 January 2024. He undertook two assessments, using the Static-99R and the STABLE-2007 risk assessment instruments. The Static-99R is designed to estimate the probability of violence and sexual recidivism among males who have been convicted of at least one sexual offence against a child or a non-consenting adults.
[21] There are 10 items that are looked at and the Static information forms the basis of the risk assessment which can be altered up or down by dynamic factors. Your score was one, which indicated an average risk rating based only on static factors. You obtained scores for the fact the victim was unrelated and a stranger, although your age lowered the overall score to one, which placed you marginally within the average risk range.
[22] The STABLE-2007 is a much more dynamic predictor and has 13 measures. You obtained a score of five, which is also in the low average risk range. Your current emotional state and considering yourself to be a victim of circumstance was a particular area of concern, and areas of moderate concern were noted as feelings of social rejection, some issues around resolving important life problems and using sex as a coping mechanism.
[23] Traditionally, the two instruments were scored and interpreted separately and integrated by way of clinical opinion. However, recent research was undertaken to find more accurate risk predictions by combining the scores and, in combining the two, your risk of sexual reoffending was found to be in the average risk band and then it set out in some detail in the report what that means.
[24] Despite Mr van Rensburg saying that there is recent research to find that is an accurate way of predicting risk, that is not the end of it, because while your risk is statistically rated in the average range, he says that does not take into account that the offending was almost 10 years ago while you and your wife were separated and that it was relatively low level in terms of the intrusiveness scale and that your victim was almost 13 years old.
[25] I questioned that age, because it was not a case where the victim was two days away from her 14th birthday or anything like that, but I think that relates to the fact that if she had been six months older and had been 14, then that would create a different statistical analysis in terms of the risk bands.
[26] Mr van Rensburg goes on to say that, despite your obvious mental health issues and your frustrated efforts to obtain asylum status, you have not offended, had stopped drinking and you do not have a history of drug use. In light of that, he was of the opinion that your true risk would be closer to the lower figures; that your risk of sexual reoffending should remain low, as long as you do not return to alcohol abuse; and that your risk would reduce further if you were granted asylum and no longer under emotional stress.
[27] There is also a reduction which is likely to happen with age and deteriorating health. My understanding of that, though, is it is much older before there is a marked, further statistical reduction in risk for age.
[28] It is noted that you will benefit greatly from effective psychiatric treatment, which will hopefully be provided in the near future, and in that regard, I have the letter from a consultant psychiatrist, Mallory Gurvinder, who you had started seeing recently, she has been working with you and has prescribed some medication.
[29] In the end, I read that as you are still in the average risk range but very much in the lower part of that range. Statically, in the average risk band but taking into account a clinical opinion, it is somewhat lower. But that is still concerning in terms of a risk assessment. In the end, the offending is of such concern to the Court that I consider registration is appropriate.
[30] It may well be that with ongoing psychological treatment and assessment that risk lowers, but at the current time my view is there is a risk and registration should follow. I note that, too, there was a change during that interview that you had with Mr van Rensburg when you reached a point of being asked to reveal why you became an asylum seeker, and certainly Mr van Rensburg did not say that that affected his assessment in terms of the risk assessment, but it is also something that is of concern in terms of there are clearly issues that you need help with moving forward, which are of concern.
[18] For these reasons, the Judge directed that Mr Shankar be placed on the Child Sex Offender Register.
The appeal
[19] Mrs Holden for Mr Shankar submits that the discount of 5 per cent for personal factors should have been significantly greater. Not only is he a first offender, he has an unblemished record of good character, including creditable community involvement both with his church and through charitable events.
[20] Mrs Holden places emphasis on Mr Shankar’s efforts at rehabilitation and points to his assessment with a consultant psychiatrist, Mallorie Govender, prior to the sentencing. The Judge had Dr Govender’s letter of 12 March 2024, the relevant paragraphs of which are:
He presents with mood and psychotic features suggestive of either schizoaffective disorder or major depressive disorder with psychotic features. His symptoms appear to have been exacerbated by head injuries as the result of physical assaults upon Mr Shankar.
He experienced sedation only and no benefit on quetiapine and as such I have changed his medication to risperidone and zopiclone today. We have discussed non-pharmacological measures to aid with mood regulation. I will review him in 3 weeks.
[21] Mrs Holden refers to the following passage from Mr van Rensburg’s report:
As far as his mental health is concerned, it is likely that Mr Shankar is suffering from Post Traumatic Stress Disorder (PTSD), as both he and his wife described him suffering from ongoing nightmares and erratic sleeping habits. He also said that he sometimes hears a voice at night of someone calling him. He could not identify the voice, but said it sounds like a male voice. He said it made him restless and afraid that he would be separated from his children again. He also stated that he often thinks about the threats against his life, which makes him anxious and worried.
[22] Mrs Holden submits that alcohol played a part in Mr Shankar’s offending. He has abstained from alcohol since the offending and since his wife came to New Zealand. The submission is that Mr Shankar should be given credit for his abstention from alcohol. It is submitted that a further 5 per cent discount should have been given for these factors.
[23] Mrs Holden also points out that Mr Shankar spent nine days in custody before being released on bail. The submission is that this time in custody “would have had a profound impact on Mr Shankar and his family” and should also have been taken into account at sentencing.
[24] In short, the submission is that Mr Shankar should overall have been given a discount of at least 10 per cent for his personal circumstances.
[25] Finally, Mrs Holden submits that the Judge erred in considering that home detention was the least restrictive outcome applicable to Mr Shankar for his offending.
His good character, his work in the community and his rehabilitative efforts mean that community detention coupled with a sentence of intensive supervision is the appropriate response to his offending.
[26] Mrs Holden goes on to discuss the appeal against Mr Shankar’s placement on the Child Sex Offender Register.
[27] A sentence of home detention is a non-custodial sentence. Therefore, the Judge considered s 9 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Registration Act). This 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) [Repealed]
(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:
(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.
[28] Mrs Holden submits, and I accept:
4.4The Supreme Court in D v Police held that a two-stage process applies when determining if registration is to be made.2 The first stage is to determine whether the threshold risk has been met, having considered the factors set out in s 9(3). That risk is a “real or genuine” risk.
4.5The phrase “serious child sex offender” contained in s 3 of the Act is not a defined term, is not used in s 9, and is therefore not of assistance to the assessment of threshold risk. If the threshold at stage one has been met, the second stage is whether the discretion to make a registration order under s 9(1) should be exercised having regard to the level of risk posed by the offender.
4.6In order to embark on that assessment, the Court must assess the nature and seriousness of the risk posed by the offender. Once a Judge has determined this, they must determine whether the risk is sufficient to warrant the making of a registration order. That will involve a balancing of the protective objectives of the registration order against the level of intrusion into the rights of the offender.
[29] Mrs Holden submits:
(a)Seriousness of the offending: Although there are aggravating features of the offending, it was a single incident.
(b) Period of time since the offending: More than 10 years elapsed between the offending and the sentencing. It is highly relevant there has been no re-offending of any sort. This is a clear mitigation of any risks to further offending.
2 D v Police [2021] NZSC 2 at [103]-[108].
(c)Age of the victim and age gaps: It is accepted the victim was only 13 at the time of the offending and Mr Shankar was 28 years her senior.
(d) Assessment of risk and evidence relating to risk posed by Mr Shankar: Mr van Rensburg concluded that Mr Shankar was in the low average range of re-offending in the static and dynamic risk assessment tests. But that testing did not consider important contextual factors, such as the length of time since the offending, the increased stability in Mr Shankar’s life since his family joined him in New Zealand, and his abstention from alcohol. Mr van Rensburg’s opinion was that Mr Shankar’s risk of re-offending should remain low so long as he does not return to abusing alcohol.
[30] In short, Mrs Holden submits that there were contributing factors to the offending which include alcohol consumption, poor judgment and loneliness because he was separated from his family. Those factors no longer apply. Therefore, the threshold is not met for Mr Shankar being a real or genuine risk.
[31] Mrs Holden goes on to address the second stage of the test which is whether the imposition of registration is proportionate to the particular risks of the offender, having regard to the intrusion on the offender’s rights. Mrs Holden submits:
4.18The imposition of a registration order requires Mr Shankar to comply with all of the requirements of s 16 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016. Many of these are not relevant to Mr Shankar given the nature of his offending and that he is of low risk of further offending.
4.19Given that Mr Shankar’s risk of reoffending is assessed as low and is supported by the assessment conducted by Mr Van Rensburg, an experienced clinical psychologist who has dealt with offenders convicted of sexual offending, it is submitted that registration would be disproportionate to his offending.
Discussion
[32] An appeal against sentence proceeds by rehearing. If I am satisfied that the Judge made an error in her sentence and that a different sentence should be imposed,
then I must allow the appeal. The onus is on Mr Shankar to point to error, but I must make my own evaluation. A sentence which is manifestly excessive must be corrected.
[33] First, I accept that the starting point of 18 months’ imprisonment was available to the Judge. Mrs Holden does not suggest otherwise. Second, I accept that the 15 per cent discount for Mr Shankar’s plea of guilty was also appropriate. Again, Mrs Holden does not suggest otherwise.
[34] There is no formula for calculating a discount for an offender’s personal characteristics. I accept that Mr Shankar was entitled to some credit for, except for the index offending, leading a constructive and prosocial life.
[35] I have read the report of Mr van Rensburg as to Mr Shankar’s mental health. I agree with the Judge’s summary as quoted at [17].
[36] I conclude that the matters discussed by Mr van Rensburg are not sufficiently related to Mr Shankar’s offending as to be materially causative of it. His moral culpability is not appreciably diminished by his mental health difficulties. Further, he did not accept that the offending occurred in his discussions with Mr van Rensburg and has not accepted responsibility for it. I would not allow a discount for those matters.
[37] Another Judge might have awarded Mr Shankar a slightly higher discount than 5 per cent for his otherwise good character. But this is a discretionary matter and not one of entitlement. I will not disturb it.
[38] Similarly, to fractionally reduce the sentence by taking into account the nine days spent in custody would be tinkering with the end sentence.
[39] Standing back and looking at the matter in totality, I cannot conclude that seven months’ home detention was manifestly too long.
[40] As to the nature of the sentence, home detention as opposed to a lesser type of sentence, again I agree with the Judge.
[41] The Courts regard sexual offending against children as being serious offending. The purposes of deterrence, denunciation and holding an offender accountable are generally applicable. A sentence of home detention can be sufficient to adequately promote those purposes in some cases, making home detention the least restrictive outcome appropriate rather than imprisonment. In this case, the factors advanced by Mrs Holden in her submissions about Mr Shankar’s personal circumstances, and the one-off nature of the offending, justify the sentence of home detention. Community detention would not sufficiently address the purposes identified. Further, intensive supervision would not be appropriate where rehabilitation would be in areas not clearly related to the causes of Mr Shankar’s offending.
[42] I differ, however, from the Judge on the question of making Mr Shankar a registrable offender. For the reasons advanced by Mrs Holden, I find that there was error in that decision.
[43] I acknowledge that the testing carried out by Mr van Rensburg puts Mr Shankar at a low average risk of re-offending. But in my view the Judge gave too little weight to the fact that this was a single instance of offending a decade ago by a man who is now 49 years of age. Further, his lifestyle is now different to that of a decade ago. He has abstained from alcohol since the offending and he lives with his family. I conclude that Mr Shankar does not pose a real or genuine risk to the sexual safety of children.
[44] I note that the Judge did not discuss the second stage of the D v Police process: whether the discretion to make a registration order should be exercised having regard to the level of risk posed by Mr Shankar. This involves balancing the protective objectives of the registration order against the level of intrusion into Mr Shankar’s rights.
[45]For my part, if the threshold risk has been met then it has only just been met.
[46] Mr Shankar has been convicted of a class 2 offence under the Registration Act. As a registrable offender he could be subject to reporting obligations for 15 years.3
[47] The reporting obligations are onerous. They include reporting travel plans if the registrable offender intends to leave their registered residential address for more than 48 hours4 and otherwise to make periodic reports.
[48] In my view, the reporting obligations are not necessary to meet Mr Shankar’s level of risk and would not address it protectively. The level of intrusion is not justified.
Decision
[49]The appeal against sentence is dismissed.
[50] The appeal against the decision to place Mr Shankar on the Child Sex Offenders Register is allowed. He is not a registrable offender.
Brewer J
3 There is an ability under s 38(4) to apply to the District Court for indefinite suspension of the reporting obligations.
4 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 21.
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