Smith v R

[2012] NZCA 419

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA417/2012 [2012] NZCA 419

BETWEEN  TREVOR SMITH Appellant

ANDTHE QUEEN Respondent

Hearing:         21 August 2012

Court:            Harrison, Heath and Courtney JJ Appearances: M B Meyrick for Appellant

C L Mander for Respondent

Judgment:      14 September 2012 at 10 am

JUDGMENT OF THE COURT

A        The appeal against conviction is dismissed. B         The appeal against sentence is allowed.

CThe sentence of two years imprisonment is quashed and substituted with a sentence of three months imprisonment together with: (a) the standard conditions provided by s 14 of the Parole Act 2002 which will expire six months after the sentence expiry date; and (b) a special condition under s 15(3)  of  the  Parole Act  2002  that  Mr Smith  must  participate  in  a programme (as that is  defined  in  s 16) to reduce the risk  of further

offending as directed by a probation officer.

SMITH V R COA CA417/2012 [14 September 2012]

REASONS OF THE COURT

(Given by Courtney J)

Introduction

[1]      Following a judge alone trial before Judge Tompkins the appellant, Trevor Smith, was convicted on one charge of indecent assault.1    On 26 June 2012 he was sentenced to two years imprisonment.2   The charge arose from an incident in which Mr Smith went to the complainant’s house, exposed himself and asked the complainant if she wanted to have sex.

[2]      Mr Smith appeals his conviction on the ground that there was no evidence of any assault having occurred.  He appeals the sentence on the ground that the matter did not warrant a custodial sentence and the Judge, therefore, failed to impose the least restrictive sentence that was appropriate.

Appeal against conviction

[3]      A charge of indecent assault requires proof of an assault, which is defined in s 2 of the Crimes Act 1961 as including:

threatening by any act or gesture to apply ... force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose.

The case against Mr Smith was put on the basis that there was an implied threat to apply force.

[4]      Mr Meyrick, for Mr Smith, submitted that the evidence did not show any threatened force, merely an invitation, clumsily made, for the complainant to have sex with him. Therefore, an essential element of the charge had not been proved.

[5]      The complainant was a neighbour of Mr Smith. Although aged in her thirties and  working part-time,  she  still  lives  with  her mother and  suffers from  a mild

1      R v Smith DC Hamilton CRI-2011-019-4733, 17 May 2012.

2      R v Smith DC Hamilton CRI-2011-019-4733, 26 June 2012.

intellectual disorder.  On the day of the offence the complainant was at home alone when Mr Smith knocked on her door.   What happened  next is recorded in the statement she gave to the Police, which was produced in evidence:

He asked me “Do you want to have sex with me?”

I said nothing. Then I said “No”.  I then tried to shut the door.

Trevor pushed his hand out onto the door trying to keep it open.

I was feeling scared.  I didn’t know when Mum was getting home.

Then he said “You look nice to have sex”.

I looked at him strangely.

I saw his penis was out.  His pants were still up but the zip was down.

He wanted me to touch his private parts.   He said “Quickly before your

Mother gets back”.

He said “You can touch my penis and I can touch your vagina”. I said “No way!”

His penis was kind of up.

Then I really pushed him out and shut the door and Trevor left.

[6]      Mr Meyrick invited us to view Mr Smith’s behaviour as merely an invitation, albeit tactless and lacking sophistication.  We do not accept that.  The Judge had a sufficient evidential basis to find that Mr Smith’s acts in standing with his penis exposed, suggesting sex while he held the door to prevent the complainant from shutting it amounted to a threat and one which he plainly intended to and would have carried out but for the complainant’s resistance.  The fact that the complainant was able to push the door shut or that Mr Smith then left does not alter that.

[7]      We are not satisfied that the Judge erred in finding that Mr Smith threatened to  apply force to  the complainant.   There can  be no  question  that  his  act  was indecent.  The elements of the charge of indecent assault were proved.  Mr Smith’s appeal against conviction is dismissed.

Appeal against sentence

[8]      Mr Smith was aged 20 years at the time of the offending.  The pre-sentence report assessed Mr Smith as being at high risk of re-offending and of harm to others without  intervention.    Mr  Smith’s  cognitive  functioning  is  also  low,  leading  to

impaired decision-making.   He lacked insight into his offending and showed no remorse.   He was identified as having a harmful pattern of alcohol use, though denied any connection between that and his offending.

[9]      Mr Smith also had previous convictions for similar offences.  In November

2010 he approached a neighbour on a pretext and asked her to have sex with him.  A few days later he approached the same woman again and threatened her.   Those incidents resulted in convictions for offensive behaviour and speaking threateningly for which he was sentenced to community work.   In February 2011 he indecently assaulted  another  woman  twice.    He  was  sentenced  to  community  work  with intensive supervision on those charges only three days before the current offending.

[10]     At sentencing Mr Meyrick sought a non-custodial sentence on the basis that, not only was home detention an available option, but it would, in fact, be the better option for both Mr Smith and the public because of the desirability of intensive supervision and treatment.  Mr Smith had been about to move onto a more intensive treatment as part of the earlier sentence of intensive supervision when the present offending occurred and the benefits of that earlier sentence were therefore lost as a result of the subsequent offending.

[11]     In rejecting a submission for a community based sentence, Judge Tompkins considered that based on Mr Smith’s past conduct he was likely to reoffend if he remained in the community before a regime of intensive rehabilitation occurred. Furthermore, the Judge did not consider the circumstances of the offending justified a non-custodial sentence and concluded:

[9]       ... that a starting point of two years’ imprisonment is appropriate, recognising the seriousness of the offending, the vulnerability of the victim, the degree of pre-meditation, as revealed by Mr Smith’s comments to the victim when he first spoke to her that they would “Need to be quick before [her mother] got back,” and the effect of the offending on the victim, given the contents of the pre-sentence report and the fact that this matter went to trial, no deductions from that starting point can properly be made.

[12]     The  Judge  also  directed  that  Mr  Smith  be  seen  by  a  departmental psychologist upon arrival at prison and that a sex offenders’ programme be made available to him in prison.

[13]     Mr Meyrick submitted that the Judge had erred in not properly considering home  detention  as  a  possibility and  in  placing  too  much  weight  on  a  reported incident at the address proposed by Mr Smith for this purpose.   If the reason for refusing home detention was concern over the suitability of the proposed address, we would  see  no  error.    A sentence  of  imprisonment  was  appropriate.    However, Mr Mander for the Crown responsibly accepts that the term was excessive.   The offending was at the lower end of the spectrum.  It would not normally attract a term of imprisonment.

[14]     Notwithstanding Mr Smith’s earlier offending,  we consider that when  the objective of rehabilitation and reintegration is taken into account a term of substantially less than two years, together with post-release conditions designed to ensure   that   Mr Smith   received   the   necessary   assistance,   would   have   been appropriate.   While it was necessary for the sentence to respond to the particular offending, we are satisfied that the Judge erred in imposing a much longer sentence than was otherwise justifiable for the apparent purpose of ensuring that Mr Smith received rehabilitative intervention before being released into the community.

Result

[15]     Mr Smith’s appeal against conviction is dismissed.   However, his  appeal against sentence is allowed.  The sentence of two years imprisonment is quashed and substituted with a sentence of three months imprisonment together with:

(a)      the standard conditions provided for by s 14 of the Parole Act 2002 which will expire six months after the sentence expiry date; and

(b)a special condition under s 15(3) of the Parole Act 2002 that Mr Smith must participate in a programme (as that is defined in s 16) to reduce the risk of further offending as directed by a probation officer.

Solicitors:

Berman & Burton Lawyers, Auckland for Appellant

Crown Law Office, Wellington for Respondent